Acquired Assets. On the terms and subject to the conditions of this Agreement, at the Closing, Seller will sell, assign, convey, transfer and deliver to Buyer, and Buyer will purchase, assume and acquire from Seller, free and clear of all Encumbrances except for Permitted Encumbrances, all of Seller’s right, title and interest in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the “Acquired Assets”): (a) the real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”); (b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”); (c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory; (d) the Distribution Facilities; (e) Buyer’s Shared Equipment; (f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof; (g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g); (h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h); (i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”); (j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence; (k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory; (l) all unexpired warranties relating to the Acquired Assets; (m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits); (n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations; (o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”); (p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements; (q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto; (r) the Transferring Employee Records, to the extent permitted by Law; (s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6; (t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and (u) the rights and obligations related to Regulatory Assets.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Allegheny Energy, Inc), Asset Purchase Agreement (Allegheny Energy, Inc)
Acquired Assets. On the terms and subject to the conditions of set forth in this Agreement, at the Closing, Seller will Sellers shall sell, assign, conveytransfer, transfer convey and deliver deliver, or cause to be sold, assigned, transferred, conveyed and delivered, to Buyer, and Buyer will purchaseshall purchase and accept from Sellers, assume (i) all of Sellers' rights, title and acquire from Sellerinterests in and to (x) all of the assets, properties, rights and claims of TG Canada relating primarily to the Gasboy line of business, and (y) all of the assets, properties, rights and claims of Gasboy, in each case excluding the Excluded Assets and the Excluded Subsidiaries ((x) and (y) being collectively referred to herein as the "Gasboy Assets") and (ii) all of Sellers' rights, title and interests in and to the Business, including all the assets, properties, rights, and claims of Sellers related to the Business including MSI (other than the Excluded Assets, the Excluded Subsidiaries and the Gasboy Assets), as the same shall exist at the Closing (such rights, title and interests in and to all such assets, properties, rights and claims described in this clause (ii) being collectively referred to herein as the "Tokheim Assets" and, together with the Gasboy Assets, the "Acquired Assets"). The sale and purchase of the Acquired Assets shall be free and clear of all Encumbrances except for (to the extent applicable as provided in the Sale Order), in each case other than Permitted EncumbrancesEncumbrances and Assumed Liabilities. Notwithstanding anything to the contrary contained in this Agreement, the terms Acquired Assets, Assumed Liabilities, Excluded Assets and Excluded Liabilities do not refer to the Excluded Subsidiaries. The Acquired Assets shall include, but not be limited to, all of Seller’s rightSellers' rights, title and interest interests in and to the assets used by Seller to carry out its VA Distribution Business assets, properties, rights and claims described in the Transferred Territory following clauses (a) through (m) below (except as of the Effective Time, except for the assets expressly excluded below or excluded in under Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the “Acquired Assets”1.2 below):
(a) All of those items of equipment, machinery, vehicles, tooling, dies, accessories, furniture and other tangible personal property owned by Sellers listed or referred to on Schedule 1.1(a) (which Schedule may include items that are subject to capitalized leases) and any other tangible personal property acquired by Sellers in the ordinary course of business consistent with past practice after the date hereof but prior to the Closing in connection with the Business (collectively, the "Personal Property"). As used in this Agreement, the Personal Property shall not include the fixtures located on real property not included in Real Property or Inventory.
(b) All supplies, goods, materials, work in process, inventory and stock in trade owned by Sellers for use or sale in the ordinary course of the Business (collectively, the "Inventory").
(c) The owned real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”);
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory Assets.1.1
Appears in 2 contracts
Samples: Purchase Agreement (Dresser Inc), Purchase Agreement (Tokheim Corp)
Acquired Assets. On Upon the terms and subject to the conditions of set forth in this Agreement, at the Closing, Closing Seller will shall sell, assign, conveytransfer, transfer convey and deliver to Buyer, and Buyer will purchase, assume and acquire from Seller, free and clear of all Encumbrances except for Permitted EncumbrancesLiens, and Buyer shall purchase, acquire and take assignment and delivery of, all of Seller’s right, title and interest of Seller in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2Acquired Assets, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the “Acquired Assets”):following:
(a) the real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”)all Fixed Assets;
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”)Intellectual Property;
(c) subject to Section 2.2 hereof, all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territoryinventory;
(d) the Distribution Facilitiessubject to Section 2.2 hereof, all Receivables;
(e) Buyer’s Shared Equipmentall of Seller's contract rights with respect to the Acquired Assets and the Assumed Obligations;
(f) all Inventoriescomputer software documentation, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) computer software source codes, computer software modifications and enhancements, computer software derivative works, all books and records, correspondence, customer lists, price lists, supplier lists, sales information, computer software and programs, if any (subject to the rights of third party licensors), and all advertising, packaging and promotional materials and files relating to the Acquired Assets or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereofthe Business;
(g) except for the Excluded Tangible Personal Propertyall goodwill, all other machinery (mobile or otherwise), equipment (including computer intangible property and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect causes of action relating to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g)or the Business;
(h) subject all licenses, certificates, permits and telephone numbers relating to Section 2.5the Business, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h)same are transferable;
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Assumed Contracts”);
(j) all customer lists current assets, including deposits, prepaid expenses and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influenceaccounts receivable;
(k) all Permits of Seller, including Transferable Permits, that relate primarily books and records relating to the VA Distribution Business in and the Transferred Territory;Acquired Assets; and
(l) all unexpired warranties relating the right to use the Acquired Assets;
name "Rheingold Brewing Co., Inc.," as the name of Buyer (mor one of its operating subsidiaries) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect following the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described Closing as contemplated in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory AssetsSection 7.4 hereof.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Drinks Americas Holdings, LTD), Asset Purchase Agreement (Drinks Americas Holdings, LTD)
Acquired Assets. On the terms and subject to the conditions of Closing Date, in accordance with this Agreement, at the Closing, Seller will and its Subsidiaries shall sell, assign, convey, transfer transfer, assign and deliver to Buyer, free and clear of any and all Encumbrances, and Buyer will purchase, assume acquire and acquire from Seller, free and clear of all Encumbrances except for Permitted Encumbrancesaccept, all of Seller’s 's and its Subsidiaries' respective right, title and interest in and to the following properties, assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective Timeand other rights, except for the assets expressly excluded below personal or excluded in Section 2.2mixed, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 tangible or intangible (collectively, the “"Acquired Assets”"):
(a) the real property described The Equipment of Seller and its Subsidiaries listed on Schedule 2.1(a), together with any Equipment transferred to Buyer pursuant to Section 2.4 (c) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”"Acquired Equipment");
(b) all The inventory of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements Seller and its Subsidiaries listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”"Acquired Inventory");
(c) all The Contracts of the substations, control buildings, service centers Seller and other buildings, fixtures and improvements located on the Owned Real Property its Subsidiaries (including any future claims arising from or a Transferred Easement, unless related to such substation, building, fixture or improvement is (icontracts) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included listed on Schedule 2.2(a2.1(c) hereto and the Backlog related to such Contracts (the "Assumed Contracts"); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
Copies or originals of all books, records, data (e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwisein any media), equipment (including computer papers and office equipment), tools, furniture instruments of whatever nature and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) wherever located to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(me) All licenses, sublicenses and other contract rights held by Seller and its Subsidiaries in connection with the Business listed on Schedule 2.1(e), including all Accounts Receivable Insituform and Unbilled RevenueNuPipe licenses, together with all sublicenses and rights to enforce, execute on use or collect the sameoperate under Insituform or NuPipe patents or trademarks, and all rights intangible or intellectual property rights, including know-how, relating thereto or to the Customer Deposits Business (but not the cash related to such deposits"Acquired Intellectual Property");
(nf) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to All Permits required solely in connection with the extent relating to the Assumed Obligations;
(o) all Intellectual Property described Business in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled effect as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM AgreementsClosing Date, except to the extent such rights have been assigned by Seller pursuant to Permits are transferable (the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be "Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred TerritoryPermits"); and
(ug) All rights to the rights name "Insituform", "Insituform East", "MidSouth" and obligations related to Regulatory Assets"insitu" and all derivatives thereof.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Cerbco Inc), Asset Purchase Agreement (Insituform East Inc)
Acquired Assets. On the terms and subject to the conditions set forth in this Agreement and pursuant to Sections 105, 363 and 365 of this Agreementthe Bankruptcy Code, at the Closing, Seller will each of the Sellers hereby agrees, to sell, assign, transfer, convey, transfer and deliver deliver, or cause to Buyerbe sold, assigned, transferred, conveyed and Buyer will purchase, assume and acquire from Sellerdelivered to the Purchaser (or one or more of its permitted designees), free and clear of all Encumbrances Liens except for Permitted EncumbrancesLiens, and the Purchaser (or one or more of its permitted designees) shall purchase and accept from each of the Sellers:
(a) all right, title and interest of the Sellers in and to the Interests. Notwithstanding anything contained in this Agreement to the contrary, equity interests in the Excluded Subs shall not be included in the Interests;
(b) all respective rights, title and interests of each of the Sellers in and to all rights, properties and assets of the Sellers other than the Excluded Assets, including without limitation, those assets that are listed or described below, whether tangible or intangible, as the same shall exist on the Closing Date, free and clear of all Liens except Permitted Liens (collectively, the “Acquired Assets”). Without limiting the foregoing, the Acquired Assets shall include all of Seller’s Sellers’ right, title and interest in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the “Acquired Assets”):
(a) the real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”);
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);following:
(i) all Contracts in effect as cash, certificates of the date of this Agreement that relate primarily to the VA Distribution Business deposit, bank deposits, negotiable instruments, marketable securities and other cash equivalents, together with all accrued but unpaid interest thereon;
(ii) all accounts receivable, whether reflected in the Transferred Territorybalance sheet or otherwise, including operating agreementsincluding, franchise agreementswithout limitation, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”those accounts receivable identified on Schedule 1.1(b)(ii);
(jiii) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for of the Acquired Assetsinventories, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business whether reflected in the Transferred Territory and in Seller’s possession balance sheet or in the possession of any third parties within Seller’s reasonable control or influenceotherwise, including, without limitation, those inventories identified on Schedule 1.1(b)(iii);
(kiv) all Permits of Sellerequipment, including Transferable Permitsmachinery, that relate primarily to computers, furniture, furnishings, fixtures, tools, office supplies and all other tangible personal property owned by the VA Distribution Business in the Transferred TerritorySellers, including, without limitation, those items identified on Schedule 1.1(b)(iv);
(lv) all unexpired warranties relating to Intellectual Property, whether registered or unregistered, and the Acquired Assets;
(m) applications and registrations therefore, all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the samegoodwill associated therewith, and all rights relating to pursue past, present and future enforcement or infringement thereof, including, without limitation, the Customer Deposits (but not the cash related to such depositsIntellectual Property identified on Schedule 1.1(b)(v);
(nvi) all claimsrights in computer software programs and information technology systems, including, without limitation, those identified on Schedule 1.1(b)(vi);
(vii) [Reserved]
(viii) [Reserved]
(ix) the Assigned Contracts and all rights and incidents of interest to the Assigned Contracts pursuant to Section 1.2 hereof, which may include:
(1) all Project Documents and other agreements, contracts or arrangements associated with the Projects to which any Seller is a party that are Assigned Contracts and listed or described on Schedule 1.1(b)(ix)(1), including, without limitation:
(A) all landfill gas rights agreements;
(B) all site lease agreements;
(C) all gas purchase agreements;
(D) all power purchase agreements;
(E) all operation and maintenance agreements; and
(F) all agreements relating to the purchase and sale of renewable energy credits;
(2) all other agreements, contracts or arrangements between any Seller and a customer (the “Customer Contracts”) that are Assigned Contracts and listed or described on Schedule 1.1(b)(ix)(2);
(3) all other agreements, contracts or arrangements between any Seller and a vendor or other third party providing goods or services (the “Supplier Contracts”) that are Assigned Contracts and listed or described on Schedule 1.1(b)(ix)(3);
(4) all Leases with respect to the Leased Real Property that are Assigned Contracts and listed or described on Schedule 1.1(b)(ix)(4);
(5) all leases related to tangible personal property, including, without limitation, equipment leases, including, without limitation, those that are Assigned Contracts and listed or described on Schedule 1.1(b)(ix)(5); and
(6) all other Contracts of the Sellers;
(x) all permits, including, without limitation, the permits listed or described on Schedule 1.1(b)(x);
(xi) all books and records that are used or have arisen from the Sellers’ conduct of the Business, including, without limitation, the Project Documents that are books and records;
(xii) all payments, credits, claims for refunds, prepaid rent, deposits (including security deposits and utility deposits), advances, deferred charges and other prepaid expenses;
(xiii) all bank accounts and lockbox arrangements, including, without limitation, those items listed or described on Schedule 1.1(b)(xiii);
(xiv) all avoidance actions and similar rights and causes of action, rights including causes of recoveryaction under Sections 544 through 553 of the Bankruptcy Code against the Purchaser or any of its Affiliates, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligationsdirectors, officers, representatives, employees or agents;
(oxv) all Intellectual Property Employee Benefit Plans of the Company listed or described in on Schedule 2.1(o) (the “Acquired Intellectual Property”1.1(b)(xv);
(pxvi) rights any intercompany payables, liabilities and obligations (of any nature or kind, and whether based in common law or statute or arising under written contract or otherwise, known or unknown, fixed or contingent, accrued or unaccrued, liquidated or unliquidated, real or potential) to CRRs any Seller, as to which Seller any Acquired Company is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller obligor or is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 otherwise responsible or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territoryliable; and
(uxvii) all other rights, properties or assets of the rights and obligations related to Regulatory AssetsSellers, including, without limitation, those that are listed or described on Schedule 1.1(b)(xvii).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Silver Point Capital L.P.), Asset Purchase Agreement (U S Energy Systems Inc)
Acquired Assets. On Upon the terms and subject to the conditions of set forth in this Agreement, at the Closing, Seller will shall sell, assigntransfer, convey, transfer assign and deliver to Buyer, and Buyer will shall purchase, acquire and assume and acquire from Seller, all of Seller’s Interest in and to the following assets, properties, rights and interests, free and clear of all Encumbrances except for (other than Permitted Encumbrances), all of Seller’s right, title and interest in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the “Acquired Assets”):
(a) the real property described on Schedule 2.1(a) (including the control buildings Site and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”)Facility;
(b) all of Seller’s Easements in the Transferred Territory that are primarily related those easements and other Contracts relating to the VA Distribution Business, including the easements listed on Schedule Site set forth in Section 2.1(b) of the Seller Disclosure Schedule (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred EasementsAssumed Real Property Contracts”);
(c) all of the substationsmachinery, control buildingsequipment, service centers vehicles, furniture, Inventory and other buildingspersonal property used primarily in connection with the operation of, fixtures and improvements or for consumption at, the Facility or the Site, including any property purchased but not yet located on at the Owned Real Property Facility or a Transferred Easementthe Site (collectively, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared LocationPersonal Property”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) all Permits and Environmental Permits relating to the Distribution FacilitiesSite and the Facility;
(e) Buyer’s Shared Equipmentall 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 Inventoriesinventory items used for the Business, but excluding those Inventories not 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 a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) in transit to, or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereofheld for use at the Facility or the Site or used in connection with the Facility or the Site (collectively, “Inventory”);
(g) except for the Excluded Tangible Personal Propertyall of Seller’s rights to use and sell electricity, all other machinery (mobile capacity or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that ancillary services with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g)period commencing after the Effective Time;
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) Intellectual Property related solely to the extent relating to equipment Site or vehicles Facility or used primarily related to in connection with the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h)Business;
(i) all Contracts Emission Allowances held by or allocated or issued to Seller or with respect to Seller’s Interest in effect 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 date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, Seller Disclosure Schedule and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are all PJM capacity sales entered into by Seller after the date of this Agreement in accordance Execution Date with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materialsrespect to its Interest, in each case, case excluding capacity sales revenue received by Seller prior to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;Closing Date; and
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of actionother assets, rights of recoveryand interests used exclusively in relation to or in connection with the Facility; provided, rights of set off and rights of recoupment of Seller against third parties to however, that the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to shall not include the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory Excluded Assets.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Dynegy Inc.), Asset Purchase Agreement (Dynegy Inc.)
Acquired Assets. On Subject to the terms and subject to the conditions of set forth in this Agreement, at the ClosingClosing referred to in Section 4 hereof, the Seller will shall sell, assign, convey, transfer and deliver to the Buyer, and the Buyer will shall purchase, assume acquire and acquire from Seller, free take assignment and clear of all Encumbrances except for Permitted Encumbrancesdelivery of, all of Seller’s right, title and interest in and to the assets (other than the Excluded Assets specified in Section 1.2) owned by the Seller and used by Seller to carry out its VA Distribution Business primarily in the Transferred Territory Business (all of which assets are hereinafter referred to collectively as the "Acquired Assets"), including, without limitation, the assets identified in paragraphs (a) through (k) below, but excluding any assets of the Effective TimeNon-Footwear Businesses. For purposes of this Agreement, except for an asset is deemed to be owned by the assets expressly excluded below Seller if it is owned by X. Xxxxx or excluded in Section 2.2by any direct or indirect subsidiary of X. Xxxxx, including the assets more specifically described below whether or not that subsidiary has been identified as a Selling Subsidiary and added after the date hereof pursuant to Section 2.6 (collectively, the “Acquired Assets”):made a party hereto.
(a) All of the real property Seller's rights under the contracts and agreements described on Schedule 2.1(a1.1(a) (including the control buildings "Store License Contracts") between the Seller and the licensor thereunder (such other buildings and related improvements located thereon) (collectivelyparty, whether designated as licensor, lessor, or any other term in the “Owned Real Property”Store License Contract, is referred to herein as a "Licensor");
(b) all of Seller’s Easements All moveable trade fixtures and furnishings owned by Seller and used primarily in the Transferred Territory that are primarily related Business (but limited to those items used in or located in the Stores), including, without limitation, those items generally described on Schedule 1.1(b), with such additions thereto and deletions therefrom as may hereafter arise in the ordinary course of business prior to the VA Distribution Business, including Closing consistent with the easements listed on Schedule 2.1(b) Seller's obligations under Section 7 hereof (including the control buildings "Furniture and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”Fixtures");
(c) all All items of tangible personal property owned by the Seller and either located at any of the substations, control buildings, service centers and other buildings, fixtures and improvements located on Stores or otherwise used primarily in the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included as described on Schedule 2.2(a1.1(c); Schedule 2.1(c)(1) lists all of , including, without limitation, the service centers store supplies, phones, ticketing machines, and substations packaging, marketing and ticketing materials owned by the Seller and used primarily in the Transferred TerritoryBusiness, whether located on Owned Real Property or a Transferred Easement, that are and the computer laptops and scanners owned by the Seller and used only primarily in the VA Distribution Business; Schedule 2.1(c)(2) lists all of Business by the Shared Locations in Seller's field personnel and the Transferred Territorysoftware associated therewith (the "Miscellaneous Personal Property");
(d) All footwear merchandise held for sale in the ordinary course of the Business, whether located at one of the Stores, in transit to one of the Stores, or in Seller's distribution facility at Canton, Massachusetts or any other distribution facility used in the Business (together, the "Distribution FacilitiesFacility"), but excluding any merchandise which the Buyer reasonably determines during the Inventory Count (as hereinafter defined) is not usable or salable in the ordinary course of the Business by virtue of being worn, damaged, defective, mismated (a pair of shoes that are not the same size), and excluding the Closeout Inventory (as hereinafter defined) (the "Inventory");
(e) All of the Seller's rights under the footwear purchase orders described on Schedule 1.1(e), which Schedule shall be updated by the Seller (subject to the Buyer’s Shared Equipment's acceptance) three days prior to the scheduled Closing Date to delete those purchase orders which have been completed prior to the Closing Date and to include any additional purchase orders for footwear entered into in the ordinary course of business prior to the Closing Date consistent with the Seller's obligations under Section 7.4 hereof (the "Purchase Orders");
(f) all Inventories, but excluding those Inventories not located at a facility listed All of the Seller's transferable rights under the contracts and agreements described on Schedule 2.1(c)(11.1(f) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof(the "Other Contracts");
(g) except All of the Seller's prepaid expenses for the Excluded Tangible Personal Propertyadvertising, all packaging or other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth items listed on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory Assets.1.1
Appears in 2 contracts
Samples: Asset Purchase Agreement (Footstar Inc), Asset Purchase Agreement (Footstar Inc)
Acquired Assets. On the terms and subject to the conditions of this Agreement, at the Closing, Seller will Graco and Graco US Finishing Brands shall, and shall cause Sellers to, sell, assign, convey, transfer and deliver to BuyerPurchasers, and Buyer will purchasePurchaser Parent and US Purchaser shall, assume and acquire shall cause Purchasers to, purchase from SellerSellers, free and clear of all Encumbrances any Liens (except for Permitted EncumbrancesLiens), all of Seller’s the following (all of the following being the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective Timefollowing, except for to the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the “Acquired extent constituting Excluded Assets”)::
(a) the real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Seller Owned Real Property”), together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Businessany Asset Selling Subsidiary therein, including the easements listed on Schedule 2.1(b) (including the control buildings real estate fixtures, leasehold improvements, security and the other buildings deposits, common-area-maintenance refunds, adjustments, and related improvements located thereon) (collectively, the “Transferred Easements”)other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited to, all of Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Liquid Finishing Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Distribution FacilitiesLiquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) Buyerthe 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s Shared Equipmentreasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all InventoriesBusiness Intellectual Property of the Asset Selling Subsidiaries, but excluding those Inventories not located at a facility goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 2.1(c)(11.2(a) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereofSchedule 1.4;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used Permits issued to or held for use by Seller primarily in any Asset Selling Subsidiary and relating to the VA Distribution Business in Liquid Finishing Business, to the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g)extent transferable;
(h) subject to Section 2.5, all rights Books and Records of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) any Asset Selling Subsidiary relating to the extent relating to equipment or vehicles primarily related to Liquid Finishing Business (except for the VA Distribution Business in the Transferred TerritoryBooks and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that with respect relates to vehicles both the Liquid Finishing Business and trailers subject to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Equipment LeaseAsset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only those vehicles copies of such Books and trailers set forth on Schedule 2.1(h)Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territoryclaims, including operating agreementsprepayments, franchise agreementsprepaid expenses, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claimsrefunds, causes of action, choses in action, rights of recovery, rights of set off off, and rights of recoupment of Seller against third parties to the extent (including any such item relating to the Assumed Obligationspayment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant assets held with respect to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory AssetsAssumed Benefit Plans/Schemes.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Graco Inc), Asset Purchase Agreement (Carlisle Companies Inc)
Acquired Assets. On the terms and subject to the conditions of ---------------- contained in this Agreement, at on the ClosingClosing Date, Purchaser shall acquire from Seller, and Seller will sellshall convey, assign, convey, transfer and deliver to BuyerPurchaser by appropriate instruments reasonably satisfactory to Purchaser and its counsel, on an "as is" basis and Buyer will purchase, assume and acquire from Seller, free and clear subject to the assumption of all Encumbrances except for Permitted EncumbrancesLiens relating to the Acquired Assets and all other liabilities relating to the Acquired Assets and the Business, all assets, properties, rights, titles and interests of Seller’s rightevery kind and nature owned, title and interest in and to the assets used licensed or leased by Seller to carry out its VA Distribution Business the extent related or used in the Transferred Territory as Business including all of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 following (collectively, the “"Acquired -------- Assets”):
(a) the real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”");
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the all Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);Assets:
(i) all cash items listed on the Acquired Assets Schedule; --------------------------
(ii) all machinery, equipment, tools, furniture, spare parts and supplies, computers and all related equipment, telephones and all other tangible personal property listed on the Acquired Assets Schedule; --------------------------
(iii) all rights existing under all purchase orders to purchase or sell goods or products, including, without limitation, any such purchase order listed on the "Contracts in effect Schedule" and under each other contract listed on the ------------------ Contracts Schedule and specifically identified as of the date of this Agreement that relate primarily a contract to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily be assigned to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 ------------------ Purchaser (collectively, the “Transferred "Assigned Contracts”") See Schedule 2.1(a)(iii); -------------------
(iv) all distribution systems and networks including, without limitation, the right, from and after the Closing Date, to contact and do business with any distributor, broker or sales representative that distributes Seller's products ;
(jv) all customer lists and records pertaining to customer information databases accounts (including customer load datawhether past or current); vendor lists; operational , suppliers, distributors, personnel and performance data for the Acquired Assetsagents and all other books, GIS information, books correspondence and business records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(kvi) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributesProprietary Rights, if any, to including, without limitation, those listed on the extent primarily related to the VA Distribution Business in the Transferred TerritoryProprietary Rights ; and-------------------------
(uvii) all trade accounts receivable as of the rights Closing Date, such accounts receivable to be set forth on a schedule to be jointly prepared by Seller and obligations related to Regulatory Assets.Purchaser as of the Closing (the "Acquired Receivables"); ---------------------
Appears in 2 contracts
Samples: Asset Purchase Agreement (Carsunlimited Com Inc), Asset Purchase Agreement (Carsunlimited Com Inc)
Acquired Assets. On At the terms Closing and subject to the terms and conditions of this Agreement, at the ClosingBuyer shall cause Newco to purchase from Seller, and Seller will shall sell, transfer, assign, convey, transfer convey and deliver to Buyer, and Buyer will purchase, assume and acquire from Seller, free and clear of all Encumbrances except for Permitted EncumbrancesNewco, all of Seller’s right, title and interest in and to the all assets of Seller, whether real, personal and mixed, tangible or intangible, used directly or indirectly by Seller in or otherwise relating to carry out its VA Distribution the Business in the Transferred Territory as of the Effective Timeowned or held by Seller, except for the assets as expressly excluded below or excluded in Section 2.2, including the 1.2 (all such assets more specifically described below and added after the date hereof pursuant rights being purchased hereunder are collectively referred to Section 2.6 (collectively, as the “Acquired Assets”):). Without in any way limiting the generality of the foregoing, the Acquired Assets shall include all of Seller’s right, title and interest in and to the following, wherever located, as of the Closing Date:
(a) the real property described on Schedule 2.1(a) all Seller’s accounts receivables (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real PropertyAcquired Accounts Receivables”);
(b) all finished goods, works-in-process, raw materials, parts and other items of Seller’s Easements in inventory and supplies wherever located which are owned by Seller as of the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) Closing Date (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred EasementsInventories”);
(c) all of the substationsfurniture, control buildingsequipment, service centers fixtures, machineries, and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territorycomputer hardware;
(d) all of Seller’s customer lists, customer mailing lists and customer sales files which are used in connection with the Distribution Facilitiesoperation of the Business;
(e) Buyerall of Seller’s Shared Equipmentinterest and rights in and to the agreements, contracts, commitments and proposals to which Seller is a party or by which its assets are bound and all sale orders entered into or received by Seller in the Ordinary Course and all other agreements of Seller (collectively, the “Seller Contracts”);
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) computer software and programs and any rights thereto associated with or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereofemployed in the conduct of the Business of Seller;
(g) except for the Excluded Tangible Personal Propertyall payments, all other machinery (mobile or otherwise), equipment (including computer deposits and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g)prepaid expenses;
(h) subject to Section 2.5all right, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) title, and interest in and to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; providedname “Cartika Medical” and any and all names associated with all products sold by Seller, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h)any derivations thereof;
(i) all Contracts in effect as of Permits (to the date of this Agreement that relate extent the same are transferable) directly or indirectly relating primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”)Business;
(j) all of Seller’s business and marketing records, including copies of accounting and operating records, asset ledgers, inventory records, budgets, customer lists lists, supplier lists, information and customer information databases (including customer load data); vendor lists; operational data respecting leased or owned equipment, correspondence, and performance data for other business records directly related to the Seller’s Business or Seller’s Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influencewhatever form they exist;
(k) all Permits cash on hand, cash equivalents, including, without limitation, certificates of deposit and deposits, bank and money market accounts, and securities of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating original books, financial records and ledgers of Seller (other than tax returns, minute books and stock records; provided, however, such materials, as they relate to the Acquired Assets, will be made available for inspection and copying by Buyer upon request) including any such records which are maintained in electronic form, including but not limited to on computer;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits)Seller Intellectual Property ;
(n) all bulk mail postal and other mail delivery authorizations agreements and related Permits of Seller;
(o) all claims, causes of choses-in-action, warranties, refunds, rights of recovery, rights of set set-off and rights of recoupment of Seller against third parties to the extent any kind relating to the Assumed Obligationspayment of Taxes of Seller and/or the Business for periods after the Closing Date;
(op) all Intellectual Property described in Schedule 2.1(omail or other communications addressed to Seller and directly relating to the Business;
(r) all leases and subleases of Seller (the “Acquired Intellectual PropertyLeases”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (is) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory automobiles, cars, trucks and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory vehicles of Seller in (the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;“Vehicles”); and
(t) all carbon credits and renewable energy attributesother assets of Seller included in Seller’s balance sheet as of July 31, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory Assets2004.
Appears in 1 contract
Samples: Asset Purchase Agreement (Cardiotech International Inc)
Acquired Assets. On Upon the terms and subject to the conditions set forth in this Agreement and on the basis of this Agreementthe representations, warranties, covenants and agreements contained herein, at the ClosingClosing as provided in Section 1.9, Seller will sellshall contribute, assign, conveytransfer, transfer convey and deliver to BuyerPurchaser, and Buyer will purchase, assume and Purchaser shall acquire from Seller, free and clear of all Encumbrances except for Permitted Encumbrances, all of Seller’s right, title and interest in and to all of the assets used assets, properties, rights, Commitments and claims of Seller, of whatever kind and nature, real or personal, tangible or intangible, that are owned, leased or licensed by Seller to carry out or any of its VA Distribution Business in affiliates at the Transferred Territory as of Closing, other than the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 Excluded Assets (collectively, the “Acquired Assets”):), in each case free and clear of Encumbrances, including:
(a) the real property described on Schedule 2.1(a) (including the control buildings All trade accounts receivable, notes receivable, negotiable instruments and the other buildings and related improvements located thereon) chattel paper (collectively, the “Owned Real PropertyAccounts Receivable”);
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution BusinessAll equipment, including the easements listed on Schedule 2.1(b) (including the control buildings maintenance materials, furniture, furnishings, fixtures, tools, equipment and the other buildings and related improvements tangible personal property, wherever located thereon) (collectively, the “Transferred EasementsEquipment”);
(c) all All Intellectual Property owned by Seller or any of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is their affiliates (i) used in both Seller’s VA Distribution “Business and Seller’s transmission business (a “Shared LocationIP”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all InventoriesAll trade secrets, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Propertyconfidential information, all other machinery (mobile or otherwise)know-how, equipment (including computer market surveys and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by technical know-how of Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as open purchase orders related to a client’s request to Seller to supply services and for which Seller has not completed the work related thereto, and (ii) all other Commitments listed on Section 1.1(g) of the date Disclosure Schedule, other than (A) Seller Employee Benefit Plans or Commitments related to Seller Employee Benefit Plans or any collective bargaining agreement (or similar agreement or other labor union contract) and (B) any other Commitment that is an Excluded Liability (all of this Agreement that relate primarily the Commitments covered by clauses (i) and (ii) are collectively referred to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except herein as otherwise provided in Section 7.23 (collectively, the “Transferred ContractsBusiness Commitments”);
(jf) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, All books and records; meter reading and service , including all business records in any form or medium, research material, tangible data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studiespersonnel records with respect to Transferred Employees, reportsinvoices, creative materialsmanuals, advertising lists and correspondence regarding customers, vendors, service providers, sales and promotional materialsliterature, catalogs and other written, printed or electronic materialsadvertising material used for the marketing of services, in each casecase whether stored or maintained in hard copy, digital or electronic format or otherwise (collectively, “Business Records”);
(g) All permits, approvals, authorizations, licenses, franchises, certificates, privileges, immunities, orders, registrations, easements and rights from Governmental Entities (collectively, “Permits”), to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influencetransferable;
(kh) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claimsAll rights, causes of action, rights of recovery, rights of set off claims and rights of recoupment of Seller against third parties credits to the extent relating to the Business, any Acquired Asset or any Assumed ObligationsLiability, including any such items arising under insurance policies and all guarantees, warranties, indemnities and similar rights in favor of Seller in respect of any other Acquired Asset or any Assumed Liability;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory All telephone numbers, e-mail addresses and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily domain names related to the VA Distribution Business in the Transferred TerritoryBusiness; and
(uj) All goodwill generated by, and associated with, the rights and obligations related to Regulatory AssetsBusiness.
Appears in 1 contract
Acquired Assets. On the terms Each Seller agrees to sell and subject transfer to the conditions of this AgreementPurchaser, and Purchaser agrees to purchase from such Seller, at the Closing, Seller will sell, assign, convey, transfer subject to and deliver to Buyer, upon the terms and Buyer will purchase, assume and acquire from Sellerconditions contained herein, free and clear of all Encumbrances except for Permitted Encumbrancesany Lien, all the following properties and assets of Seller’s right, title and interest in and such Seller to the extent such properties and assets used by Seller to carry out its VA Distribution Business in the Transferred Territory exist as of the Effective Time, except for Closing Date other than the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 Excluded Assets (collectively, the “Acquired Assets”):
(a) the real all tangible personal property described (such as equipment, computers, computer software, supplies and furniture) listed on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”);
(b) all customer, client and mailing lists of Seller’s Easements in Sellers;
(c) all files related to customer accounts serviced by Sellers or any of Sellers’ affiliates;
(d) all rights of Sellers under the Transferred Territory licenses, permits, authorizations, orders, registrations, certificates, variances, approvals, consents and franchises (including the registrations and licenses of all registered representatives, investment advisor representatives and insurance agents) set forth on Schedule 2.1(d) and any pending applications thereto; but excluding any licenses, permits, authorizations, orders, registrations, certificates, variances, approvals, consents and franchises and pending applications that are primarily related not transferable by Law and Regulation;
(e) the Intellectual Property set forth on Schedule 2.1(e), including the goodwill associated therewith, licenses and sublicenses granted in respect thereto and rights thereunder, remedies against infringements thereof and rights to protection of interest therein;
(f) all rights of Sellers under any contracts, indentures, mortgages, purchase orders, the Leases, instruments, Liens, guaranties and other agreements relating to the VA Distribution Business, including the easements listed those set forth on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon2.1(f) (collectively, the “Transferred Easements”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(ng) all claims, deposits, prepayments, refunds, causes of action, choses in action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties Sellers to the extent relating related to any of the Assumed Obligationsother Acquired Assets;
(oh) all Intellectual Property described business and financial records (other than the Tax records), books (other than the corporate minute books), ledgers (other than the corporate stock ledger), files, plans, documents, correspondence, lists, notebooks, creative materials, advertising and promotional materials, marketing materials, studies, reports, equipment repair, maintenance or service records, in Schedule 2.1(o) (the “Acquired Intellectual Property”)each case whether written or electronically stored or otherwise recorded;
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable rights of WFG to the Transferred Territory use of the name “The Xxxxxxxx Financial Group, Inc.,” and each other name, including each trade name, under which Sellers conduct the Business; and
(iij) all Financial Transmission Rights to which Seller is entitled that are allocable rights of Sellers to the Transferred Territory based telephone numbers listed on Schedule 2.1(j). Nothing in this Agreement nor the Transferred Territory’s load ratio share consummation of the peak load transactions contemplated hereby shall be construed as an attempt or agreement to assign any Acquired Asset which by its terms or by Laws and Regulations is nonassignable without the consent of Allegheny’s PJM Load Zone pursuant a third party or a governmental agency or body or is cancelable by a third party in the event of an assignment or purported assignment (“Nonassignable Assets”) unless and until such consent shall have been obtained. To the extent permitted by applicable Laws and Regulations, in the event consents to the PJM Agreementsassignment of an Acquired Asset cannot be obtained, except such Nonassignable Assets shall not be assigned and transferred by Sellers to Purchaser at the extent Closing and instead shall be held, as of and from the Closing Date, by Sellers in trust for Purchaser. As of and from the Closing Date, the covenants and obligations thereunder shall be performed by Purchaser in such rights have been assigned by Seller’s name and all benefits and obligations existing thereunder shall be for Purchaser’s account. Each Seller pursuant shall take or cause to be taken at Purchaser’s expense such actions in such Seller’s name or otherwise as Purchaser may reasonably request so as to provide Purchaser with the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion benefits of the Commonwealth Nonassignable Assets (provided, however, Sellers shall not be required to incur any costs or agree to any material undertakings therewith) and to effect collection of Virginia described money or other consideration that becomes due and payable under the Nonassignable Assets. Each Seller shall promptly pay over to Purchaser all money or other consideration received by such Seller after the Closing Date in Annex A hereto;
(r) respect of all Nonassignable Assets. As of and from the Transferring Employee RecordsClosing Date, each Seller authorizes Purchaser, to the extent permitted by Law;
(s) applicable Laws and Regulations and the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributesterms of the Nonassignable Assets, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if anyat Purchaser’s expense, to perform all the extent primarily related to obligations and receive all the VA Distribution Business in benefits of such Seller under the Transferred Territory; and
(u) the rights Nonassignable Assets and obligations related to Regulatory AssetsPurchaser shall perform all such obligations.
Appears in 1 contract
Acquired Assets. On the terms and subject to the terms and conditions of this Agreement, at the Closing, Buyer shall purchase from Seller, and Seller will shall sell, assigntransfer, convey, transfer convey and deliver to Buyer, and Buyer will purchase, assume and acquire from Seller, free and clear of all Encumbrances except for Permitted Encumbrances, all of Seller’s right, title and interest of Seller, individually and collectively, in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as each of the Effective Time, except for the following assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the “"Acquired Assets”"):
(a) the real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”);
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts accounts, notes and other receivables relating to the Business or the Acquired Assets (it being understood that in effect as the event that Seller at any time collects any amounts in respect of the date Accounts Receivable included within the Acquired Assets subsequent to Closing, Seller shall promptly remit to Buyer all amounts so collected);
(ii) all raw materials and supplies, works-in-process, finished goods and other items of this Agreement that relate primarily inventory relating to the VA Distribution Business in or the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 Acquired Assets (collectively, the “Transferred Contracts”"Inventory");
(jiii) all customer lists machinery, office and customer information databases (including customer load data); vendor lists; operational computer equipment, tools, furniture, fixtures, leasehold improvements and performance data for other tangible personal property and fixed assets relating to the Business or the Acquired Assets, GIS informationwherever located, books including, without limitation (collectively, the "Fixed Assets");
(iv) Seller's interest in all leases for real and records; meter reading personal property relating to the Business (collectively, the "Leases");
(v) all Intellectual Property relating to the Business or the Acquired Assets, goodwill associated therewith, licenses and service data; operatingsublicenses granted and obtained with respect thereto and rights thereunder and all remedies against infringements thereof and rights to protection of interests therein under the laws of all jurisdictions;
(vi) all franchises, safety approvals, permits, licenses, orders, registrations, qualifications, certificates, variances and similar rights (collectively, "Permits") relating to the Business or the Acquired Assets obtained from governmental agencies to the extent transferable to Buyer;
(vii) all rights to receive mail and other communications addressed to Seller sent to the office of Seller (including, without limitation, mail and communications from customers, suppliers, distributors, agents and others and payments) relating to the Business or the Acquired Assets;
(viii) all books, records (including maintenance records; warranty information; engineering designs, plansproduct tracing records, blueprints and as-built plans and specifications and procedures; system drawings; quality assurance/control records), ledgers, files, photographs, archives, reference materials, documents, studiescorrespondence, reportslists, creative materialsdrawings, specifications, advertising and promotional materials, studies, reports, research and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties written materials relating to the Business or the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(uix) all other property owned by Seller or in which Seller has an interest that relates to the rights Business or the Acquired Assets, including, without limitation, the names "Sierra Tucson Hospital" and obligations related to Regulatory Assetsany derivatives thereof and the Business as a going concern and the goodwill thereof.
Appears in 1 contract
Acquired Assets. On In furtherance of the terms parties intentions set forth in Section 1.01 and subject to the terms and conditions of set forth in this Agreement, and except for the Excluded Assets, at the ClosingClosing referred to in Article IV hereof, Seller will Sellers shall sell, assign, conveytransfer, transfer and deliver to BuyerPurchaser, and Buyer will Purchaser shall purchase, assume acquire, and acquire from Seller, free take assignment and clear of all Encumbrances except for Permitted Encumbrancesdelivery of, all of Seller’s the assets, properties, rights and licenses of Sellers of every kind and description, wherever located, real, personal or mixed, tangible or intangible, owned, held, used or usable in the conduct of the Business (all of which assets are hereinafter referred to collectively as the “Acquired Assets”), including all right, title and interest of Sellers in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the “Acquired Assets”):following:
(a) the real equipment, machinery, furniture and furnishings, computers and computer hardware (including processing units, terminals, disk drives, tape drives, printers, keyboards, screens, and peripherals), vehicles, trailers, apparatus, tools, dies, appliances, implements and other tangible personal property described used or usable in the Business, including the personal property listed on Schedule 2.1(a1.02(a) hereto (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real PropertyEquipment”);
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements contracts and agreements listed on Schedule 2.1(b1.02(b) hereto (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred EasementsScheduled Contracts”);
(c) all the leasehold estate of the substations, control buildings, service centers Sellers in and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included to that certain property described on Schedule 2.2(a1.02(c) (the “Scheduled Leasehold Interests”); , under the lease agreements creating such leasehold estate, which lease agreements are listed in Schedule 2.1(c)(11.02(c) lists all of (the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory“Lease Agreements”);
(d) inventories, including parts and spare parts inventories, chemicals, finished goods, products, work-in-progress, raw materials and other inventories (“Inventories”) used or usable in the Distribution FacilitiesBusiness;
(e) Buyer’s Shared Equipmentall of Sellers’ books, records, papers and instruments of whatever nature and wherever located that relate to the Acquired Assets or which are required or necessary in order for Purchaser to conduct the Business from and after Closing in the manner in which it is presently being conducted (but only to the extent allowed by applicable laws), including, without limitation, specifications, blue prints, drawings, designs, sales, promotional and marketing literature, accounting and financial records, personnel and labor records, sales and property tax records and returns relating to the Business;
(f) all Inventoriespatents, but excluding those Inventories not located trademarks, technology, know-how, data, copyrights, tradenames, service marks, licenses and other intellectual property used or usable in the conduct of the Business, to the extent assignable (“Intellectual Property”), including, without limitation, all software, all of Sellers’ rights under any licenses related to Sellers’ use, at a facility listed on Schedule 2.1(c)(1) any time, of computer equipment, hardware or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereofsoftware;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily any lists in the VA Distribution possession of Sellers that identify customers to whom sales have been made in connection with the operation of the Business and vendors from whom supplies are purchased in connection with the Transferred Territory (operation of the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g)Business;
(h) subject to the Scheduled Permits (as defined in Section 2.56.07 below), all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h)assignable;
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business name “Tong Specialty” and any derivatives thereof used or usable in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-Business and the right to use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except name “Lamb Energy Services” as otherwise provided contemplated in Section 7.23 (collectively, the “Transferred Contracts”);8.06; and
(j) all customer lists cash and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory cash equivalents on hand and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;banks; and
(k) all Permits of Selleraccounts, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable notes and Unbilled Revenue, together with all other receivables and rights to enforce, execute on or collect receive payments from any person used to calculate the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes amount of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory Net Working Capital pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory AssetsSection 2.02.
Appears in 1 contract
Acquired Assets. On the terms and subject to the conditions of this Agreement, at At the Closing, Seller will sell, assign, convey, transfer agrees to sell and deliver to Buyer, and Buyer will purchase, assume and acquire from Seller, free and clear of all Encumbrances except for Permitted Encumbrances, all of Seller’s the right, title and interest that Seller possesses and has the right to transfer in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the “Acquired Assets”):
(a) the real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”);
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substationsassets constituting the Division (the "ACQUIRED ASSETS"), control buildingswhich includes the following: - all products and inventories, service centers tangible or intangible and other buildingsin whatever medium, fixtures and improvements located on whether raw materials, work-in-progress, samples, prototypes or finished goods provided that all finished goods shall have a minimum of fifteen (15) months until the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is expiration date thereof (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(athe "INVENTORY"); Schedule 2.1(c)(1) lists all of - to the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Propertyextent assignable, all other machinery governmental or administrative licenses, certificates, permits, approvals, and registrations (mobile or otherwisethe "PERMITS"); - all intellectual property, equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP the goodwill associated therewith, including all trademarks, service marks, trade names, including, without limitation, the name "ZILACTIN" (and that are owned by Seller derivatives), copyrights, know-how, patents, trade secrets, internet domain names, and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory telephone numbers (the “Tangible Personal Property”"INTELLECTUAL PROPERTY"); - all formulae, providedmanufacturing instructions, that with respect batch formulations, technologies, analytical methods, trade secrets, know-how, and product specifications pertaining to vehicles products (hereinafter collectively referred to as the "TECHNICAL INFORMATION") and trailers owned by Sellerall notebooks, records reports, databases (regarding stability results, release results and assay results) and other written documentation which contain or embody the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, Technical Information; - all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) or pursuant to the extent relating to equipment all warranties, representations and guarantees or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed from or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties manufacturers to the extent relating to the Assumed Obligations;
Business Division or the products or affecting the Acquired Assets; - all credits, prepaid expenses, deferred charges, security deposits and prepaid items listed in Schedule 2.1; - all unshipped orders as of the Closing Date; - the customer, supplier and other contracts listed on Schedule 2.1 (o) all together with the licenses to Intellectual Property described in Schedule 2.1(o) (referenced above, the “Acquired Intellectual Property”"ASSUMED AGREEMENTS");
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory ; and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned - any other tangible or intangible property used or owned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
Division Business, including, for example, customer orders, customer lists, distribution lists, price lists, operating manuals, books, records, mailing lists, advertising materials, purchasing materials and records, research and development files, litigation files and telephone, fax and data line numbers and goodwill. Schedule 2.1 sets forth a list of all Inventory, Permits, Intellectual Property (unoting what is licensed and what is owned) the rights and obligations related to Regulatory AssetsAssumed Agreements, by category.
Appears in 1 contract
Acquired Assets. On (a) Subject to the terms and subject to the conditions set forth in this Agreement and on the basis of this Agreementthe representations and warranties herein, at the ClosingSeller agrees to, Seller will sell, assign, convey, transfer transfer, assign and deliver to the Buyer, and the Buyer will agrees to purchase, assume receive and acquire accept, as applicable, from Seller, free and clear of all Encumbrances except for Permitted Encumbrances, the Seller all of Seller’s the right, title and interest in and to the assets and properties of every kind, character and description, used by Seller to carry out its VA Distribution Business in or for the Transferred Territory as benefit of the Effective TimeBusiness, except for the assets expressly excluded below whether tangible, intangible, real, personal or excluded mixed, set forth in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the “Acquired Assets”):
(a) the real property described on Schedule 2.1(a) hereto (including the control buildings and the other buildings and related improvements located thereon) (collectively, collectively referred to hereinafter as the “Owned Real PropertyAssets”) other than the Excluded Assets (as defined below);. Schedule 2.1(a) is referred to herein as the “Asset Schedule.”
(b) all Without limitation of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectivelyforegoing, the “Transferred Easements”);
(c) all Assets shall include, in each case in respect of the substationsSeller, control buildingsall the tangible property, service centers and other buildingsfurniture, fixtures and improvements located equipment, Fifty Percent (50%) cash on hand at the Owned Real Property or a Transferred EasementClosing, unless such substation, building, fixture or improvement is Fifty Percent (i50%) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
Accounts Receivable (d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating transferable under applicable Law), notes receivable (to equipment or vehicles primarily the extent listed on the Asset Schedule), inventory (including office supplies), tenant improvements (to the extent related to the VA Distribution Business in the Transferred Territory; provideda lease which is an Assigned Contract), that with respect to vehicles goodwill, software, Intellectual Property (other than as set out as an Excluded Asset), Prepaid Items, Assigned Contracts, Assigned Personal Property Leases, books and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
records (i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, all patient lists to the extent primarily related transferable under applicable Law, but excluding any patient medical records and files to the VA Distribution Business in extent required to be retained by the Transferred Territory Seller and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Sellercommunications which are subject to attorney-client privilege), including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties any Seller policies and procedures relating to the Acquired Assets;
(m) Business, telephone and email addresses, all Accounts Receivable Permits and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes certificates of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties need to the extent relating transferable to the Assumed Obligations;
(o) Buyer, all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which benefits, proceeds and other amounts payable under any Seller is entitled as an LSE for the Transferred Territory pursuant policy of insurance to the PJM Agreements, including extent (i) all Auction Revenue Rights to which Seller is entitled that such amounts are allocable to the Transferred Territory and payable for losses suffered or payable by Buyer or (ii) all Financial Transmission Rights such amounts are payable with respect to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller an Assumed Liability or other liability included in the portion calculation of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory AssetsWorking Capital.
Appears in 1 contract
Samples: Asset Purchase Agreement (Generex Biotechnology Corp)
Acquired Assets. On Subject to the terms and subject to the conditions of this --------------- Agreement, at the Closing, Seller will agrees to sell, assign, convey, transfer convey and deliver to Buyer, Buyer and Buyer will purchase, assume agrees to purchase and acquire from Seller, free and clear of all Encumbrances except for Permitted Encumbrances, Seller all of Seller’s 's right, title and interest in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 following (collectively, the “Acquired "Assets”"):
(aA) All of Seller's oil and gas and associated hydrocarbons ("Oil and Gas") and related rights, titles and interests, including, but not limited to, leasehold interests, royalty interests, overriding royalty interests, payments out of production, reversionary rights, and contractual rights to production in and to (i) those interests described in the real property leases, subleases, assignments and other instruments described on Schedule 2.1(ain Exhibit 1.1(A) (including collectively "Leases"); (ii) those xxxxx described in Exhibit 1.1
(A) (the control buildings "Xxxxx"); (iii) all easements, rights of way, platform leases, and other rights, privileges, benefits and powers with respect to the use and occupation of the surface of, and the other buildings and related improvements located thereon) (collectivelysubsurface depths under, the “Owned Real Property”)land covered by the Leases; (iv) all rights in respect of any pooled or unitized acreage located in whole or in part within each Lease, including all production from the pool or unit allocated to any such Lease and all interests in any xxxxx within the unit or pool associated with such Lease, regardless of whether such unit or pool production comes from xxxxx located within or without the Leases;
(bB) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution BusinessAll licenses, including the easements listed on Schedule 2.1(b) servitudes, gas purchase and sale contracts (including the control buildings interests and the other buildings rights, if any, with respect to any prepayments, take-or-pay, buydown and related improvements located thereon) (collectivelybuyout agreements), the “Transferred Easements”);
(c) all crude purchase and sale agreements, farmin agreements, farmout agreements, bottom hole agreements, acreage contribution agreements, operating agreements, unit agreements, processing agreements, options, leases of the substationsequipment or facilities, control buildingsjoint venture agreements, service centers pooling agreements, transportation agreements, rights-of-way and other buildingscontracts, fixtures agreements and improvements located on the Owned Real Property rights, which are owned by Seller, in whole or a Transferred Easementin part, unless such substation, building, fixture or improvement is and are (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and appurtenant to the Leases, or (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in connection with the ownership or operation of the Leases, or the sale, distribution or disposal of oil and gas or water, (collectively, the "Contracts");
(C) All of the real, personal and mixed property and facilities located in, on or adjacent to the Leases or used in the VA Distribution Business in the Transferred Territory operation thereof (the “Tangible Personal Property”whether located on or off such Leases), provided, that with respect to vehicles and trailers which is owned by Seller, in whole or in part, including, without limitation, platforms, well equipment; casing; tanks; crude oil, natural gas, condensate or products in storage severed after the Acquired Assets will only include those vehicles Effective Time; tubing; compressors; pumps; motors; fixtures; machinery and trailers set forth on Schedule 2.1(gother equipment; pipelines; field processing equipment; inventory and all other improvements used or useful in the operation thereof (the "Related Assets");
(hD) subject All governmental permits, licenses and authorizations including environmental permits, licenses and authorizations, as well as any applications for the same, related to Section 2.5the Leases or the use thereof;
(E) All of the files, records and data relating to the items described in subsections (A), (B), (C), and (D) above, including, without limitation, title records (title curative documents); surveys, maps and drawings; contracts; correspondence; Federal Energy Regulation Commission files; microfiche lists; geological, geophysical and seismic records, data and information; production records, electric logs, core data, pressure data, decline curves, graphical production curves and all rights related matters and construction documents (except to the extent the delivery or copying of such records may be restricted by contract with a third party, in which event Seller as lessee under the leases set forth shall cooperate with Buyer in efforts to provide on Schedule 2.1(hsite access to such records until a release from such restriction may be obtained) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h"Records");
(iF) Any and all Contracts other assets of Seller appurtenant or related to or used or useful in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance connection with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred TerritoryLeases; and
(u) the rights and obligations related to Regulatory Assets.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Titan Exploration Inc)
Acquired Assets. On Subject to the terms and subject to the conditions of this Agreement, at the Closing, Seller will agrees to sell, assign, conveytransfer, transfer convey and deliver to the Buyer, and the Buyer will purchase, assume agrees to purchase and acquire from the Seller, free and clear of all Encumbrances except for Permitted Encumbrancesany liens, pledges, charges, claims, security interests or other encumbrances (collectively, "Liens"), all of the Seller’s 's right, title and interest in and to all assets primarily held for use or used in, arising from or related to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2Business, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 following (collectively, the “"Acquired Assets”"):
(a) all of (i) the real property described on Schedule 2.1(aregistered trademarks, service marks, unique identifying characteristics and derivatives of the AmeriHost Inn(R) (including the control buildings and the other buildings AmeriHost Inn and related improvements located thereon) SuitesSM brands (collectively, the “Owned Real Property”"Brands") and (ii) the unregistered trademarks, service marks, unique identifying characteristics and derivatives of the Brands (the "Trademarks");
(b) all of Seller’s Easements (i) Assigned Existing Contracts set forth on attached Schedule 2.7(a) and (ii) all franchise agreements relating to all Owned Facilities (as defined in the Transferred Territory that are primarily related Section 2.6 below) entered into pursuant to the VA Distribution Business, including the easements listed on Schedule 2.1(bSection 4.1(d)(ii)(B) (including the control buildings and the other buildings and related improvements located thereon) below (collectively, the “Transferred Easements”"Assigned Contracts");.
(c) all prepaid royalties and fees of the substations, control buildings, service centers and other buildings, fixtures and improvements located Seller on the Owned Real Property Closing Date relating to the operation or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all conduct of the service centers and substations Business including without limitation the cash balance, as of the Closing Date, in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only Marketing and Reservation Fund (as defined in Section 2.6 below) (the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory"Prepaids");
(d) the Distribution Facilitiesdomain name, "www.amerihostinn.com" and conxxxx xxx xxxxxxxxxxx contained thereon and all other domain names, web-sites, including without limitation all content and information contained thereon, relating primarily to the Business (collectively, the "Web Site Materials");
(e) Buyer’s Shared Equipmentall certificates, licenses, permits, authorizations, registrations and approvals issued or granted to the Seller by Governmental Entities (as defined below) that are used, held for use or intended to be used primarily in the operation or conduct of the Business, to the extent assignable (the "Assigned Permits");
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereofbuilding plans and prototypes utilized in the development of hotels under the Brands (the "Plans");
(g) except for all slogans, designs, printed works, graphic art, photographs, CDs, audio and video tapes relating to any of the Excluded Tangible Personal Property, all other machinery (mobile Trademarks or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution conduct of the Business (together with the Trademarks, the Web Site Materials, the Plans and all Intellectual Property (as defined in the Transferred Territory (the “Tangible Personal Property”Section 2.5 below) listed on attached Schedule 2.5(a), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g"Assigned Intellectual Property");
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; providedall toll free reservation telephone numbers, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h)including without limitation 1-800-434-5800;
(i) all Contracts xxx xxxxxxxxx systems, manuals, marketing, sales and promotional literature, books, records, files, documents, operating manuals, personnel records, customer, supplier and franchise lists and files, preprinted materials, copyrighted and copyrightable materials owned by the Seller and used primarily in effect as the operation of the date of this Agreement that relate primarily Business or otherwise related to the VA Distribution Business in licensing of the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”)Brands;
(j) all customer lists financial records and customer information databases (including customer load data); vendor lists; operational accounting, internal and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business audit records used exclusively in the Transferred Territory and in Seller’s possession or in operation of the possession of any third parties within Seller’s reasonable control or influenceBusiness;
(k) all Permits other rights of Seller, including Transferable Permits, that relate primarily the Seller to use the VA Distribution Business in Brands or the Transferred Territory;Trademarks; and
(l) all unexpired warranties goodwill associated with the Business, the Trademarks or otherwise relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory Assets.
Appears in 1 contract
Samples: Asset Purchase Agreement (Amerihost Properties Inc)
Acquired Assets. On Upon the terms and subject to the provisions and conditions of this Agreement, at the Closing, the applicable Seller will shall, or shall cause its applicable Affiliate to, sell, assign, convey, transfer and deliver convey to BuyerPurchaser, and Buyer will Purchaser shall purchase, assume acquire and acquire accept from Seller, free and clear of all Encumbrances except for Permitted Encumbrancessuch applicable Seller or Affiliate, all of Sellersuch Person’s right, title and interest in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective TimeClosing in (1) those assets set forth in Section 2.1(a) of the Seller Disclosure Letter, except (2) all Intellectual Property (other than Patents and Marks) primarily used, or held primarily for use in, the operation of the Business and (3) all of the assets expressly excluded below exclusively used, or excluded held exclusively for use, in Section 2.2the operation of the Business (other than in each of cases (2) and (3), including any Excluded Assets), including:
(i) (A) one hundred percent (100%) of the assets more specifically described below equity interest in eSpeed Technology Services, L.P. and added after eSpeed Technology Services Holdings, LLC (the date hereof pursuant to Section 2.6 “TSA Entities”); and (collectivelyB) one hundred percent (100%) of the equity interest in Kleos Managed Services, L.P. and Kleos Managed Services Holdings, LLC (together, the “Kleos Entities” and together with the TSA Entities, the “Acquired AssetsSubsidiaries” and the equity described in this clause Section 2.1(a)(i), the “Acquired Subsidiary Equity”):);
(a) the real property described on Schedule 2.1(aii) (including A) each Contract set forth on Section 2.1(a)(ii) of the control buildings Seller Disclosure Letter, if related exclusively to the Business, then in its entirety, and if not related exclusively to the other buildings Business, then only with respect to (and preserving the meaning of) those portions of it that relate to the Business; and (B) any Contract executed after the date of this Agreement and prior to the Closing and executed in compliance with Section 6.1(b), if related improvements located thereonexclusively to the Business, then in its entirety, and if not related exclusively to the Business, then only with respect to (and preserving the meaning of) those portions of it that relate to the Business (collectively, such Contracts or portion of such Contracts, as the case may be, the “Owned Acquired Contracts”); provided, that Sellers may update Section 2.1(a)(ii) of the Seller Disclosure Letter no later than two (2) Business Days prior to the Closing Date to account for Contracts that were entered into in compliance with Section 6.1(b)(vii) and Section 6.1(b)(viii) and to account for any Contracts that have terminated after the date of this Agreement and prior to the Closing Date in accordance with their terms;
(iii) the Leased Real Property set forth on Section 2.1(a)(iii) of the Seller Disclosure Letter (the “Acquired Leased Real Property”);
(biv) all of Seller’s Easements in the Transferred Territory that are primarily related subject to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset license granted pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller6.16, the Acquired Assets will only include those vehicles and trailers Intellectual Property set forth on Schedule 2.1(g);
(hSection 2.1(a)(iv) of the Seller Disclosure Letter and subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as grant of the date of this Agreement that relate primarily license pursuant to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively6.12, the “Transferred Contracts”Business Marks (collectively with Section 2.1(a)(2);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(pv) rights to CRRs to which the Tangible Personal Property set forth on Section 2.1(a)(v) of the Seller is entitled as an LSE for Disclosure Letter; provided, that Sellers may update Section 2.1(a)(v) of the Transferred Territory pursuant Seller Disclosure Letter no later than two (2) Business Days prior to the PJM Agreements, including (i) all Auction Revenue Rights Closing Date to which Seller is entitled account for Tangible Personal Property that are allocable has been replaced in the Ordinary Course after the date of this Agreement and prior to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase AgreementsClosing Date;
(qvi) rights to serve the existing certified service territory of Seller Employment Agreements set forth in the portion Section 2.1(a)(vi) of the Commonwealth Seller Disclosure Letter (the “Assumed Employment Agreements”) and the Consulting Agreement set forth in Section 2.1(a)(vi) of Virginia described in Annex A heretothe Seller Disclosure Letter (the “Assumed Consulting Agreement”);
(rvii) all Prepaid Expenses and all Commissions Receivables;
(viii) all property and casualty insurance proceeds received or receivables in connection with (A) the Transferring Employee Recordsloss or destruction of any asset or property that would have been included in the Acquired Assets but for such loss or destruction and (B) any damage to any of the Acquired Assets, other than such proceeds used to purchase replacement assets or properties that are included in the Acquired Assets;
(ix) all claims, causes of action, defenses and rights of offset or counterclaim, or settlement agreements (in any manner arising or existing, whether xxxxxx or inchoate, known or unknown, contingent or non-contingent) relating to any of the Acquired Assets or Assumed Liabilities, other than any Retained Claim;
(x) goodwill of the Business; and
(xi) a copy of all books, records, ledgers, files, documents, correspondence, lists (including customer lists), studies and reports and other printed or written materials (whether in hard copy or electronic form), in each case, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily exclusively related to the VA Distribution Business Business. All assets set forth in this Section 2.1(a) are collectively referred to as the Transferred Territory; and
(u) the rights and obligations related to Regulatory “Acquired Assets.”
Appears in 1 contract
Acquired Assets. On The Acquired Assets shall consist of the terms following assets, properties and subject rights of the Sellers related to or used in the conditions Corn Silk Business, except as otherwise expressly set forth in this Article I:
(a) all inventories of this AgreementMerchantable (as hereinafter defined) finished products and display materials normally accompanying such finished products in shipments to customers, in each case on hand at the Closing, Seller will sell, assign, convey, transfer and deliver to Buyer, and Buyer will purchase, assume and acquire from Seller, free and clear of all Encumbrances except for Permitted Encumbrances, all of Seller’s right, title and interest in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 Closing (collectively, the “Acquired Assets”):
(a) the real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”"Inventory");
(b) all of Seller’s Easements market research, promotional data and advertising and display materials currently used in the Transferred Territory that are primarily related to the VA Distribution Corn Silk Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all technologies, analytical methods, technical information, product specifications and formulations, manufacturing processes, data bases, operating manuals, trade secrets, know-how and raw material specifications currently owned by the Sellers and, subject to the further terms and conditions of the substationsthis Section 1.2, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations exclusively in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Corn Silk Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilitiesall machinery, equipment, molds, tools and other items of tangible personal property as set forth on Schedule 1.2(d);
(e) Buyer’s Shared Equipmentsubject to Section 1.9 hereof, all contracts, agreements, and purchase and sale orders relating to the operation of the Corn Silk Business subsequent to the Closing Date;
(f) all Inventoriesfiles, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1records, data, plans, contracts (including contracts under which Seller is entitled to receive royalty payments from the other parties thereto) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereofand recorded information, including, without limitation, customer and supplier lists currently used in the Corn Silk Business;
(g) except for all software, operating systems, dispatch systems and accounting systems developed and transferable by the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are Sellers currently owned by Seller the Sellers and, subject to the further terms and conditions of this Section 1.2, used or held for use by Seller primarily exclusively in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g)Corn Silk Business;
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; providedtransferable, that with respect to vehicles all governmental licenses, permits, authorizations and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h)approvals;
(i) all Contracts the right, title and interest of Sellers in effect as of the date of this Agreement that relate primarily and to the VA Distribution Business name "Corn Silk" and any variations thereof containing the name "Corn Silk," all logos of Sellers used or held for use in connection with the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreementsCorn Silk Business, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);Corn Silk Trademarks and tradenames and related goodwill associated therewith; and
(j) all customer lists cash received by Sellers or any agent of Sellers after the Closing Date from customers of the Corn Silk Business for services provided or products sold by the Corn Silk Business after the Closing Date. In connection with the foregoing, (A) the term "Merchantable", as applied to the Inventory, shall mean that such Inventory (i) is of a quality such that it can be sold in the ordinary course of the Corn Silk Business, (ii) has or would pass quality assurance testing consistent with past practice of the Corn Silk Business, (iii) is in compliance with all applicable laws, rules and customer information databases regulations, including the fact that such Inventory has been manufactured in accordance with good manufacturing practices (including customer load data"GMP"), as defined by the United States Federal Food, Drug and Cosmetic Act, as amended (the "FDA Act"), and (iv) is not adulterated or misbranded within the meaning of the FDA Act, or the rules and regulations promulgated thereunder; vendor lists; operational and performance data for (B) if, and to the extent, any of the assets, properties and rights which are used both in the Corn Silk Business and any other business being retained by Sellers (the "Retained Businesses") are not included in the Acquired Assets, GIS informationthe Sellers and the Purchaser shall cooperate with each other and make such reasonable arrangements as are necessary to permit the Sellers, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materialson the one hand, and the Purchaser, on the other writtenhand, printed to operate the Retained Businesses and the Corn Silk Business, respectively, consistent with past practices, including making and providing duplicate copies of certain material or electronic materialsredacting information therefrom (it being understood that any such assets, properties or rights not included in each casethe Acquired Assets pursuant to Section 1.2(c) or (g) but currently used in the Corn Silk Business shall, to the extent primarily related severable, be transferred and assigned to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
Purchaser (k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the thereby becoming Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenueand, together with all rights to enforceif not severable, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE be made available for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share use of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory AssetsPurchaser).
Appears in 1 contract
Acquired Assets. On Subject to the terms and subject to the conditions of this Agreement, at and as of the Closing, Seller will Sellers shall sell, assign, convey, transfer and deliver to Buyer, and Buyer will purchase, assume is purchasing and acquire receiving from Seller, free and clear of all Encumbrances except for Permitted EncumbrancesSellers, all of Seller’s rightthe assets, title properties, improvements and interest business owned or leased by Sellers and utilized in and and/or relating to the assets used by Seller to carry out its VA Distribution Business in other than the Transferred Territory Excluded Assets (as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the “Acquired Assets”):
(a) the real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereonsuch term is hereinafter defined) (collectively, the “Owned Real PropertyAssets”), including, but not limited to, the following:
(a) All trade accounts receivable of Sellers (excluding all Florida payables and receivables);
(b) all of Seller’s Easements All tangible fixed assets, warranties, furniture, fixtures, machinery, equipment, computers and computer software utilized in the Transferred Territory that are primarily related and/or relating to the VA Distribution Business, including including, without limitation, the easements assets listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”1.1(b);
(c) all of All inventory, prepaid expenses, deposits and supplies relating to the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) All patient lists, referrer lists, supplier lists, trade secrets, technical information, and other such knowledge and information constituting the Distribution Facilities“know-how” used or usable in the Business, including the names, Internet sites and telephone numbers utilized by the Business, and the good will of the Business;
(e) All patient records relating to patients who have received service at the Centers will be provided to Buyer’s Shared Equipmentaffliated professional entity;
(f) all InventoriesAll contract rights and commitments of the Business (exclusive of rights under any, but excluding employment agreements, consulting agreements, professional radiology service agreements (except those Inventories listed in Schedule 7.2 attached hereto) management agreements or other such agreements which are disclaimed by Buyer hereunder, and any real estate lease to the extent not located at a facility listed in Schedule 4.10 annexed hereto), including rights under the real estate leases listed on Schedule 2.1(c)(14.10 (the "Assumed Real Estate Leases") all payor contracts, customer contracts, manufacturer's warranties and any licenses or 2.1(c)(2) license agreements relating to patents, trademarks or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereofother intangibles, if any, utilized in the Business;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer All licenses and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily permits utilized in the VA Distribution Business in Business, to the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g)extent transferable;
(h) subject to Section 2.5All non-financial books, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) records, software programs, printouts, drawings, data, files, notes, notebooks, accounts, invoices, correspondence and memoranda relating to the extent relating to equipment or vehicles primarily related to Assets and/or the VA Distribution Business in the Transferred TerritoryBusiness; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);and
(i) all Contracts All other rights and assets of any kind, tangible or intangible, utilized in effect as of the date of this Agreement that relate primarily and/or relating to the VA Distribution Business in the Transferred TerritoryBusiness, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but whether or not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and reflected in Seller’s possession financial statements or in the possession of its books and records excluding any third parties within Seller’s reasonable control or influence;
(k) all Permits of Sellersuch assets located at 000 Xxxxx Xxxxxxxx, including Transferable PermitsXxxxxxxxxx, that relate primarily to the VA Distribution Business XX 00000xxx not used in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share operation of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory AssetsBusiness.
Appears in 1 contract
Acquired Assets. On Subject to the terms and subject to the conditions of set forth in this Agreement, at the ClosingClosing referred to in Section 4 hereof, Seller will the Seller, and with respect to the Real Property Leases Xxxxxx Xxxxxxx, Xxxxxxx Xxxx and Xxxx Xxxxx, shall sell, assign, convey, transfer and deliver to the Buyer, and the Buyer will shall purchase, assume acquire and acquire from Sellertake assignment and delivery of, free (i) all of the assets of the Seller and clear the (ii) asset of all Encumbrances except for Permitted EncumbrancesXxxxxx Xxxxxxx, Xxxxxxx Xxxx and Xxxx Xxxxx represented by the Real Property Lease, including the following, all of Seller’s right, title and interest in and which assets are hereinafter referred to collectively as the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the “"Acquired Assets”"):
(a) All of the real Seller's fixtures, hardware, machinery, installations, equipment, furniture, tools, spare parts, supplies, materials and other personal property including those items described on Schedule 2.1(a1(a) to the Disclosure Letter of the Seller and the Stockholders addressed to the Buyer of even date herewith (the "Disclosure Letter") (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”"Equipment");
(b) all of The Seller’s Easements 's inventories including raw materials, work in the Transferred Territory that are primarily related progress and finished goods, and including those items described on Schedule 1(b) to the VA Distribution Business, including Disclosure Letter (the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”"Inventory");
(c) all All of the substationsSeller's title to, control buildings, service centers interest in and other buildings, fixtures and improvements located on rights under the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included leases of personal property described on Schedule 2.2(a1(c) to the Disclosure Letter (the "Personal Property Leases"); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) As of the Distribution FacilitiesClosing, all cash and deposits, bank accounts, money market accounts, certificates of deposits, treasury bills, bonds, notes, securities and similar assets ("Cash") and prepaid expenses made or incurred in connection with the operation of the Seller's business (the "Deposits") other than as described on Schedule 1(d) to the Disclosure Letter;
(e) Buyer’s Shared EquipmentAny lists in the possession of the Seller that identify customers of the Seller (the "Accounts") and vendors from whom supplies are purchased in connection with the operation of the business of the Seller;
(f) all InventoriesAll of Xxxxxx Xxxxxxx, but excluding those Inventories not located at a facility listed Xxxxxxx Xxxx and Xxxx Xxxxx title to, interest in and rights under the leases of real property described on Schedule 2.1(c)(11(f) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereofthe Disclosure Letter (the "Real Property Leases");
(g) except All of the Seller's rights under the purchase orders, contracts and agreements described on Schedule 1(g) to the Disclosure Letter for the Excluded Tangible Personal Propertypurchase or sale of goods, materials and services (the "Contracts") and under all other contracts, commitments and agreements of the Seller entered into in the ordinary course of business prior to the Closing and which are expressly accepted by the Buyer in writing at the Closing and all rights and privileges described on Schedule 1(g) to the Disclosure Letter granted to the Seller by third parties which relate to the operation by the Seller of its business, including, all other machinery (mobile or otherwise)rights to operate, equipment (including computer maintain and office equipment), tools, furniture service the Equipment and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in to the VA Distribution Business in return of deposits on the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g)Equipment;
(h) subject to Section 2.5, all All of the Seller's transferable rights of Seller as lessee under the leases set forth licenses and permits described on Schedule 2.1(h) (the “Equipment Leases”1(h) to the extent relating to equipment or vehicles primarily related to Disclosure Letter (the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h"Licenses");
(i) all Contracts in effect as All of the date Seller's uncertificated securities, license fees, patents, patent applications, trademarks, trademark applications, trade names, copyrights, copyright applications, rights to xxx and recover for past infringement of this Agreement that relate primarily patents, trademarks and copyrights, computer programs computer software, engineering drawings, service marks, customer lists, goodwill, designs, software, research and development, know-how, inventions (whether or not patentable), trade secrets, and other intangible assets including those described on Schedule 1(i) to the VA Distribution Business in Disclosure Letter (the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”"Intangibles");
(j) All books, records, drawings, schematics, documentation, descriptions, product applications, test information, other data in whatever format or medium, including all customer lists computer records, programs and customer information databases data and business and marketing plans, relating to the operation of the business or any of the Seller's products (including customer load datathose products currently under development or currently contemplated); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;and
(k) all Permits of Seller, All trade and other accounts and notes receivable including Transferable Permits, that relate primarily those described on Schedule 1(k) to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) Disclosure Letter (the “Acquired Intellectual Property”"Receivables");
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory Assets.
Appears in 1 contract
Acquired Assets. On At the Closing, and upon the terms and subject to fulfillment of the conditions of this Agreementherein set forth, at the Closing, Seller will Sellers shall sell, assign, conveytransfer, transfer convey and deliver to the Buyer, and the Buyer will purchase, assume shall purchase and acquire from SellerSellers, with full title and guarantee and free and clear of all Encumbrances Encumbrances, except for Permitted Encumbrancesthe Assumed Liabilities, all of Seller’s Sellers’ right, title and interest in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 following (collectively, the “Acquired Assets”):); provided, however, that the Acquired Assets do not include the Excluded Assets:
(a) the real property described those contracts listed on Schedule 2.1(a) 1.1 attached hereto (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real PropertyAcquired Contracts”);
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements equipment listed on Schedule 2.1(b) 1.1 attached hereto (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred EasementsAcquired Equipment”);
(c) to the extent transferable under applicable Law, all of permits, authorizations, orders, licenses, certificates, variances and similar rights issued to Seller by any Governmental Authority and primarily related to the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business all pending applications therefor (a the “Shared LocationPermits”) and (ii) included ), including, without limitation, those Permits set forth on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory1.1;
(d) the Distribution Facilitiespatents, patent applications, copyrights, copyright applications, know-how, information, computer software, trademarks, service marks, trade names, brands, private labels, registered domain names, or trade secrets and licenses and rights with respect to the foregoing, all other intellectual property and intangible property owned by Sellers or that Sellers possess the right to use, and all goodwill of Sellers, in each case relating to the operation of the Business, including, without limitation, those set forth on Schedule 1.1 (the “Assigned Intellectual Property”);
(e) Buyer’s Shared Equipmentthe software, hardware and network equipment and information technology relating to the operation of the Business, including, without limitation, those set forth on Schedule 1.1 (the “IT Systems”);
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed rights of Sellers to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that any warranties received from suppliers with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such rights, claims, deposits);
(n) all claims, prepayments, prepaid items, credits, allowances, rebates, causes of action, rights of recovery, rights of set off and recoupment, rights of recoupment of Seller against third parties set-off (collectively, “Claims”) with respect to the extent Acquired Assets for any period beginning after the Closing Date
(g) all recipes, articles, images (including original files), videos (including original files), Nutrio databases, files and books and records relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred TerritoryBusiness; and
(uh) the rights and obligations any other assets and/or receivables related to Regulatory Assetsthe Business which Buyer may request from Sellers after the Closing in accordance with Section 5.1(g).
Appears in 1 contract
Acquired Assets. On (a) Pursuant to Sections 363 and 365 of the Bankruptcy Code and on the terms and subject to the conditions precedent set forth in Article VI of this Agreement, at the Closing, Closing the Seller will shall sell, assign, transfer, convey, transfer and deliver to Buyerthe Purchaser, and Buyer will purchasethe Purchaser shall purchase for the aggregate Purchase Price and accept from the Seller, assume all of the Seller's rights, title, and acquire from Sellerinterests in, to and under all of the following assets, property, rights and claims of the Seller related to the Business, wherever located, real, personal or mixed, whether tangible or intangible, owned, held or used in the conduct of the Business by the Seller as the same shall exist on the Closing Date, free and clear of all Encumbrances except for Permitted Encumbrancesliens, claims, encumbrances and other interests in property (collectively, the "Acquired Assets"):
(i) the Inventory located at the corporate headquarters, fifty (50) stores and two (2) distribution centers, as identified on Schedule 3.04(a) (the "Acquired Locations");
(ii) all furniture, fixtures, machinery, equipment and supplies of Seller as of the Closing Date, as identified on a Schedule to be provided to Purchaser by Seller on or before Closing;
(iii) all computers, software, and related property associated with the operation of the Acquired Locations and the Business;
(iv) all of the Seller’s right's leasehold and/or subleasehold interests in the Acquired Locations;
(v) all customer and supplier lists and all other information as to sources of supply and relationships with suppliers and customers, including all databases containing such information, that pertain to or are necessary to operate the Business (including the Business prior to the commencing of the Bankruptcy Case);
(vi) copies of books and records, correspondence, employment records, files and computer programs and data and databases relating to the Business (including the Business prior to the commencing of the Bankruptcy Case) reasonably required by the Purchaser;
(vii) the executory contracts identified in Schedule 1.01(a)(vii) (the "Assigned Agreements");
(viii) all rights, title and interest in in, to and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the “Acquired Assets”):
(a) the real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real under all Intellectual Property”);
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are case owned or licensed by the Seller and used or held or held for use by Seller primarily in the VA Distribution Business Business, including the items identified in Schedule 3.06(a); and
(ix) all Prepaid Advertising.
(b) All assets that are not Acquired Assets are excluded from the Transferred Territory sale and shall be retained by the Seller (the “Tangible Personal Property”"Excluded Assets"), provided, that with respect to vehicles and trailers owned by Seller, . Such Excluded Assets include the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);following:
(i) all Contracts in effect as trade and other accounts receivable, notes receivable and other rights to payment of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territorymoney, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, collections on employee advances and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”)security deposits;
(jii) all customer lists that certain Split-Dollar Insurance Agreement dated June 3, 1993 between the Seller and customer information databases (including customer load data); vendor lists; operational Xxxx Xxxxxx, as trustee of the Xxxxxxx X. Xxxxxx and performance data for the Acquired AssetsXxxxx X. Xxxxxx Irrevocable Insurance Trust Agreement dated October 24, GIS information1991, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materialsas amended, and any and all other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory documents relating thereto and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influencerights and interests arising thereunder;
(kiii) all Permits any of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in rights of the Transferred TerritorySeller under this Agreement;
(liv) all unexpired warranties any rights of the Seller's bankruptcy estate under the Bankruptcy Code, but excluding any rights in, to, or relating to any of the Acquired Assets;
(mv) any and all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute claims for damages against third-parties arising on or collect before the sameClosing Date, except for claims in, to, or relating to the Assigned Agreements;
(vii) any contracts, agreements, instruments or licenses that are not Assigned Agreements or Acquired Locations, except that if the Purchaser becomes aware of a contract, agreement, instrument or license of the Seller after March 27, 2001, but before the Closing Date, that was not previously disclosed to it and as to which the Seller was party, the Purchaser shall in its discretion have the right to request to the Seller to assume and have such contract assigned to it and any cure costs associated therewith shall be paid equally by the Seller and the Purchaser up to a maximum of $25,000, and any cure costs in excess of such amount shall be borne solely by the Purchaser;
(viii) the corporate charter, taxpayer and other identification numbers, seals, minute books, stock transfer books and other documents relating to the organization and existence of the Seller;
(ix) the Seller's director and officer liability insurance, including any and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territoryarising thereunder; and
(ux) the rights cash and obligations related to Regulatory Assetscash equivalents.
Appears in 1 contract
Acquired Assets. On the terms and subject to the conditions of set forth in this Agreement, including approval of the Bankruptcy Court pursuant to Sections 105, 363 and 365 of the Bankruptcy Code, at the Closing, Seller will the Sellers shall sell, assign, transfer, convey, transfer and deliver to Buyerthe Purchasers, and Buyer will the Purchasers shall purchase, assume and acquire from Seller, free and clear of all Encumbrances except for (other than Permitted Encumbrances) and accept from the Sellers, all of Seller’s right, title and interest of the Sellers in and to the all rights, properties and assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective TimeSellers (other than the Excluded Assets), except of every kind and description, wherever located, whether real, personal or mixed, tangible or intangible, owned, leased, licensed, used or held for use in or relating to the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 Business (collectively, the “Acquired Assets”):), including, without limitation all right, title and interest of each Seller in, to or under:
(a) all Accounts Receivable existing on the real property date hereof or arising in the ordinary course of the Business after the date hereof, except to the extent that any of the foregoing are collected, paid, satisfied or discharged on or prior to the Closing;
(b) all credits, claims for refunds, prepaid expenses, prepaid rent, and prepaid items relating to the Business, including without limitation, such of the foregoing as are listed and described on Schedule 2.1(a1.1(b);
(c) all Contracts listed or described in Schedules 1.1(c)(i), (c)(ii), (c)(iii) and (c) (iv) other than those excluded pursuant to the next to last paragraph of this Section 1.1, as the same may be supplemented pursuant to the next to last paragraph of this Section 1.1 (the “Assigned Contracts”):
(i) all of the Contracts between any Seller and a customer relating to the Business (the “Customer Contracts”), including without limitation, such of the control buildings foregoing as are listed or described on Schedule 1.1(c)(i) or that relate to the Business or arise in the ordinary course of the Business after the date hereof;
(ii) the Contracts between any Seller and a vendor or other third party providing goods or services relating to the Business (the “Supplier Contracts”), including without limitation, such of the foregoing as are listed or described on Schedule 1.1(c)(ii) or that relate to the Business and arise in the ordinary course of the Business after the date hereof;
(iii) the licenses, sublicenses or other Contracts to which a Seller is a party or otherwise bound pursuant to which Sellers have granted, been granted, have given, or have obtained any right to use any Intellectual Property that is material to the Business or is otherwise related to the Acquired Assets, including without limitation such of the foregoing as are listed or described on Schedule 1.1(c)(iii) (the “License Agreements”); and
(iv) all Material Contracts not otherwise covered by clauses (i)-(iii) above and the other buildings Contracts and related improvements located thereonarrangements that are listed or described on Schedule 1.1(c)(iv).
(d) any rights, claims or causes of action of Sellers against third parties arising out of events occurring prior to the Closing Date, including and, for the avoidance of doubt, arising out of events occurring prior to the Petition Date and including any rights under or pursuant to any and all warranties, representations and guarantees made by suppliers, manufacturers and contractors relating to products sold, or services provided, to Sellers, excluding only the rights, claims and causes of action that are identified as Excluded Assets in Section 1.2;
(e) all inventory, finished goods, goods in transit, works in process, samples, raw materials, packaging materials and other materials used or held for use in the operation of the Business or held by third parties, whether on consignment or not, including without limitation such of the foregoing as are listed or described on Schedule 1.1(e) (collectively, the “Inventory”);
(f) (i) the Owned Real Property used in the operation of the Business that is listed and described on Schedule 1.1(f)(i) (the “Acquired Owned Real Property”) and (ii) all Leases of Leased Real Property used in the operation of the Business that are listed and described on Schedule 1.1(f)(ii), other than such Leases that are excluded pursuant to the next to last paragraph of this Section 1.1, as the same may be supplemented pursuant to the next to last paragraph of this Section 1.1 (such Leases, the “Assumed Leases” and the Leased Real Property subject thereto, the “Acquired Leased Real Property”);
(bg) all of Seller’s Easements machinery, equipment, computers, furniture, furnishings, fixtures, office supplies, vehicles, tools, order entry devices and all other tangible personal property owned by the Sellers that are used in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all operation of the substations, control buildings, service centers Business and other buildings, fixtures and improvements located on the any Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned any Leased Real Property or a Transferred Easement(collectively, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), providedincluding, that with respect to vehicles and trailers owned by Sellerwithout limitation, such of the Acquired Assets will only include those vehicles and trailers set forth foregoing as are listed or described on Schedule 2.1(g1.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth Trademarks that are listed on Schedule 2.1(h) 1.1(h), and each of the following used in connection with such Trademarks or products manufactured and sold under or that are used in connection with such Trademarks as of the Effective Date: all trade dress, logos, slogans, Domain Names, and other similar designations of source or origin, together with the goodwill symbolized by, and any registrations and applications for, the foregoing; Patents; Copyrights (the “Equipment Leases”) to the extent relating to equipment other than Software); know-how, Trade Secrets, and rights in proprietary processes, formulae, Customer Lists, and supplier lists; and all other Intellectual Property owned, used or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h)licensed by Sellers;
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business rights in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, computer software programs and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 information technology systems listed or described on Schedule 1.1(i) (collectively, the “Transferred ContractsSoftware”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, Permits issued to the extent primarily related Sellers by any Governmental Entity relating to the VA Distribution operation of the Business in and any subsidies and remissions provided by any Government Entity to Sellers with respect to the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influenceBusiness;
(k) all Permits of Seller, including Transferable Permits, that relate primarily the bank accounts and lockbox arrangements relating to the VA Distribution Business that are listed or described on Schedule 1.1(k) (excluding all rights or incidents of interest with respect to the cash or cash equivalents in such bank accounts or lock box arrangements on or before the Transferred TerritoryClosing Date);
(l) all unexpired warranties Documents except those (i) specifically excluded under Section 1.2(l) or (ii) relating to employees of Sellers who are not Hired Employees;
(m) all of Sellers’ rights, to the extent they are transferable, to make claims, and to receive the proceeds of any such claims, (i) under property or casualty insurance policies maintained by or on behalf of Sellers, or any of them, for any loss to an Acquired Asset occurring prior to Closing that is covered by such policies, and (ii) under liability insurance policies maintained by or on behalf of Sellers, or any of them, with respect to any Assumed Liability;
(n) all goodwill associated with the Business or the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described telephone and telephone facsimile numbers and other directory listings used in Schedule 2.1(o) (connection with the “Acquired Intellectual Property”)Business;
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreementsall original artwork, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory prints, lithographs, etchings, oil paintings, watercolor drawings and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share other similar works of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreementsart located at any Owned Real Property or Leased Real Property;
(q) all rights of Sellers under letters of credit or similar instruments issued by third parties naming any Seller as a beneficiary thereunder relating to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;Acquired Assets; and
(r) all other or additional privileges, rights and interests associated with the Transferring Employee RecordsAcquired Assets of every kind and description and wherever located that are used or intended for use in connection with, or that are necessary to the extent permitted continued operation of, the Business as presently being operated. Notwithstanding anything herein to the contrary, at any time prior to Closing, Purchasers shall be entitled in their sole discretion to remove any Contracts or Leases from the lists of Assigned Contracts and Assumed Leases by Law;
providing written notice thereof to Sellers, and any Contracts or Leases so removed shall not constitute Acquired Assets at Closing. At any time prior to Closing, Purchasers shall be entitled in their sole discretion to request the Sellers to add to the lists of Assigned Contracts and Assumed Leases any Contracts or Leases of Sellers by providing written notice thereof to Sellers, and any Contracts or Leases so added shall constitute Acquired Assets; provided that Purchasers shall not be entitled to add to the list of Assigned Contracts or Assumed Leases any Contracts or Leases of Sellers that, as of the date Purchasers provide written notice to Sellers, (si) any Sellers have rejected by order of the assets deemed Bankruptcy Court, (ii) that have terminated or expired pursuant to their terms or by order of the Bankruptcy Court, or (iii) that are set forth on Schedule 1.1(A). If Purchasers add any Contracts or Leases to the Assigned Contracts or Assumed Leases in accordance with the foregoing, then, at the Purchasers’ request, and subject to Section 1.5, Sellers shall take such steps as are necessary to cause such Contracts or Leases to be assumed by the Sellers and assigned to the Purchasers, including promptly filing appropriate pleadings with the Bankruptcy Court to obtain approval of such assumption and assignment. At any time prior to three (3) Business Days prior to the date of the Auction, Purchasers may, in their sole discretion by written notice to Sellers, designate any of the Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits other than Assigned Contracts and renewable energy attributesAssumed Leases as additional Excluded Assets, including renewable energy credits, green tags, carbon emissions reductions which notice shall set forth in reasonable detail the Acquired Assets so designated. Purchasers acknowledge and similar attributes, if any, to the extent primarily related to the VA Distribution Business agree that there shall be no reduction in the Transferred Territory; and
(u) the rights and obligations related Purchase Price if they elect so to Regulatory designate any Acquired Assets as Excluded Assets.
Appears in 1 contract
Acquired Assets. On Subject to the terms and subject to conditions hereof, on --------------- the conditions of this Agreement, at the ClosingClosing Date (as defined below), Seller will shall sell, assign, convey, transfer and deliver assign to Buyer, and Buyer will purchase, assume shall purchase and acquire from Seller, free and clear of all Encumbrances except for Permitted Encumbrances, all of Seller’s 's right, title and interest in and to the assets used by Seller to carry out its VA Distribution Business in listed below (the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the “"Acquired Assets”):" or the "Acquired Business"), free and clear of any and all liens, claims, liabilities, encumbrances or obligations:
(a) the real property described those uncompleted contracts, subcontracting arrangements, and purchase orders listed on Schedule 2.1(a) (including A hereto for the control buildings design of software and computer systems, the provision of consulting services and training, and the other buildings marketing, demonstration, distribution and related improvements located thereonresale of software, except for any such contracts, arrangements or purchase orders that Buyer designates (prior to or at Closing) as not accepted (collectively, the “Owned Real Property”"Acquired Contracts");
(b) all of Seller’s Easements in the Transferred Territory that are primarily related deposits or fees paid by Seller pursuant to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”)Acquired Contracts;
(c) all of the substations, control buildings, service centers intellectual property and other buildings, fixtures technology rights used or held for use and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations necessary in the Transferred Territoryconduct of Seller's business, whether located on Owned Real Property including without limitation: all software licenses, product licenses, software development rights, developed applications, computer programs, computer systems, source codes, data systems, development methodologies and practices, trade secrets, know-how, technical information, research records, test information, market surveys, marketing information, trademarks, tradenames, and copyrights, the name "Encore Consulting," "Encore," or a Transferred Easementany variation thereof, that are used only in and all applications or licenses for the VA Distribution Business; Schedule 2.1(c)(2) lists all of foregoing (collectively, the Shared Locations in the Transferred Territory"Intellectual Property");
(d) accounts receivable relating to services performed under the Distribution FacilitiesAcquired Contracts on or after December 2, 1996, plus unbilled amounts due to Seller for services performed under the Acquired Contracts on or after December 2, 1996;
(e) Buyer’s Shared Equipmentall permits, licenses, approvals and authorizations by governmental or regulatory authorities relating to the Acquired Contracts and Seller's business ("Permits"), to the extent transferable;
(f) all Inventoriesclient and customer account information, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) customer lists, contact lists, subcontractor lists, and independent contractor lists relating to or 2.1(c)(2) utilized in the current or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereofpast conduct of Seller's business;
(g) except for all contracts with employees (other than with the Excluded Tangible Personal PropertyOwners) and all contracts with independent contractors, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by without limitation the rights of Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that thereunder with respect to vehicles confidentiality and trailers owned non-compete covenants by Seller, the Acquired Assets will only include those vehicles such employees and trailers set forth on Schedule 2.1(g)independent contractors;
(h) subject all claims and rights against third parties relating to Section 2.5the Acquired Assets, all including without limitation, insurance claims, vendors' warranties, rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; providedrecovery, that with respect to vehicles set-offs and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h)credits;
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territorycomputer equipment, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1including, but not including limited to the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectivelyfollowing hardware: laptop computers, the “Transferred Contracts”)desktop computers and printers, and software, business plans, models, forecasts, training agreements, practices and techniques;
(j) all customer lists books, records, information and customer information databases (including customer load data); vendor lists; operational and performance data for documentation regarding the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influenceforegoing;
(k) all Permits of Sellerfurniture, including Transferable Permitsoffice equipment, that relate primarily to the VA Distribution Business in the Transferred Territory;phone systems, fax machines; and
(l) all unexpired warranties relating to goodwill associated with the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory AssetsBusiness.
Appears in 1 contract
Acquired Assets. On Subject to the terms and subject to the conditions of this Agreement, at on and as of the Closing"Closing Date" (as hereinafter defined), Seller will sell, assign, convey, transfer and deliver Sierra shall sell to the Buyer, and the Buyer will purchaseshall purchase from Sierra, assume all, and acquire from Sellernot less than all, free of the assets and clear properties of Sierra (other than the "Excluded Assets" hereinafter defined) as set forth herein, and as same are constituted on the Closing Date (collectively, the "Assets"). Without limiting the generality of the foregoing, the Assets shall be comprised of all Encumbrances except of the following:
(I) All (i) cash on hand, cash and cash equivalent items held by or on behalf of Sierra, including without limitation checking accounts, marketable securities, bank 7 accounts and other cash items, (ii) the proceeds of accounts receivable including uncashed checks in payment thereof received by Sierra on or prior to the Closing Date, and (iii) related investments readily convertible into cash of Sierra (collectively, the "Cash Items");
(II) All trade accounts receivable, notes receivable and other rights to receive payment from customers of Sierra, including therein all accrued accounts receivable representing amounts payable in respect of products and services sold or otherwise provided to customers of Sierra which have not been invoiced or billed as at the Closing Date (collectively, the "Receivables"); provided, that the term Receivables shall not include those specific accounts receivable, if any, which are set forth on Schedule 1(A)(ii) annexed hereto;
(III) All inventories of raw materials, work-in-process, finished goods, operating supplies and materials, factory and maintenance supplies and related inventory items, which are owned by Sierra and used in connection with its business (collectively, the "Inventories");
(IV) All assumable prepaid items of Sierra for Permitted Encumbranceswhich the Company would receive an economic benefit following the Closing Date, and appropriately pro-rated through the Closing Date (collectively, the "Prepaid Items");
(V) All (i) machinery, equipment, molds, tooling, jigs, dies, measuring and calibrating devices, automobiles and other vehicles, files, systems, furniture, fixtures, office equipment and (subject to the terms and conditions respecting ownership thereof as provided by the terms and conditions of any lease and/or agreements with respect to the occupancy of Real Property referred to in Section 1(A)(x) hereof) leasehold improvements of Sierra which are owned by Sierra (collectively, the "Fixed Assets"); (ii) those additional Fixed Assets listed on Schedule 1(A)(v) annexed hereto which have been ordered for Sierra prior to the Closing Date, whether or not received as at the Closing Date; and (iii) those leases of personal property listed on Schedule 1(A)(v) annexed hereto;
(VI) All letters patent, patent applications, trademarks, copyrights and trade names, trademarks, computers, computer equipment, computer programs, computer software, and computer systems (other than those listed on Schedule 1(B)(ii)), library of books, records, know-how, trade secrets, technical information, brochures and other related assets of Sierra pertaining to its business and owned by Sierra (collectively, the "Intellectual Property");
(VII) All customer lists, trade secrets, licenses, permits, franchises, whether or not listed on Schedules to this Agreement, and related contract rights and other proprietary intangible assets of Sierra, whether or not confidential, and all books, records, printouts, drawings, data, files, notes, notebooks, accounts, invoices, correspondence and memoranda which are owned or possessed by Sierra (collectively, the "Documents and Records");
(VIII) All tools categorized as small hand tools and packaging and office supplies owned by Sierra, whether or not expensed (collectively, the "Supplies");
(IX) All rights and benefits of Seller’s rightSierra under all: (i) purchase orders on hand and customer bids and quotations; and all other contract rights, title commitments and interest claims of Sierra which are specified under or pursuant to all manufacturers' warranties and any licenses or license agreements relating to any Intellectual Property used by Sierra for its business; (ii) contracts and agreements, including orders and commitments covering the purchase of Inventories and/or Supplies, the providing of services and/or products to customers, and agency, consultant and distributorship agreements; and (iii) all other contracts, orders and commitments which are not required to be scheduled pursuant to this Agreement and (in the case of such unscheduled contracts, orders and commitments) which have been entered into by Sierra in the normal and ordinary course of its business prior to the Closing Date and not in violation of the covenants contained in this Agreement (collectively, the "Contract Rights");
(X) All leasehold rights, as lessee, in and to those leases of real properties and improvements occupied by Sierra in connection with its business as are set forth of Schedule 1(A)(x) annexed hereto (the "Leased Real Estate");
(XI) The exclusive rights in and to the assets name "Sierra Press", and all trade names and trademarks associated therewith, whether alone or in conjunction with any other name or word, and all other names used by Seller to carry out Sierra in connection with the operation of its VA Distribution Business in the Transferred Territory business as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the “Acquired Assets”):
(a) the real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”)a going concern;
(bXII) Except as it may relate to Excluded Assets and Excluded Liabilities, all rights, benefits and claims, including rights of Seller’s Easements indemnification, monetary relief and/or replacement of Inventories, products or supplies, which may be asserted against any vendor, manufacturer or supplier of Inventories, Fixed Assets or Supplies included in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(mXIII) Except for the Excluded Assets referred to in Section 1.2 hereof, all Accounts Receivable other rights and Unbilled Revenueassets tangible or intangible, together of Sierra used by Sierra in connection with all rights its business, except for such assets which have been disposed of in the normal and ordinary course of the business of Sierra and pursuant to enforce, execute on or collect this Agreement between the same, date hereof and all rights relating to the Customer Deposits (but not the cash related to such deposits)Closing Date;
(nXIV) all All claims, recoveries, causes of action, rights of recovery, rights of set off documents and rights of recoupment of Seller against third parties to the extent records relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs pending proceedings, lawsuits and claims to which Seller Sierra is entitled a party as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant Closing Date and relating to Sierra, the PJM Agreements, except Assets and/or to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territoryits business; and
(uXV) All rights incident, directly or indirectly, to insurance policies, proceeds, loss funds, claims, litigation and insurance accounts in connection with the rights Assets, Sierra and obligations related the operation of the business prior to Regulatory Assetsthe Closing Date.
Appears in 1 contract
Samples: Asset Purchase Agreement (Panorama International Productions Inc)
Acquired Assets. On Subject to the terms and subject to the conditions of this Agreement, at the Closing, Seller will agrees to sell, assign, conveytransfer, transfer convey and deliver to Buyer, and Buyer will purchase, assume agrees to purchase and acquire from Seller, free and clear of all Encumbrances except for Liens (other than Permitted EncumbrancesLiens), all of Seller’s 's right, title and interest in and to the all of Seller's, properties and assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective Timeevery kind, nature, character and description (whether real, personal or mixed, whether tangible or intangible, and wherever located), except for the those assets expressly which are specifically excluded below or excluded as provided in Section 2.21.3 hereof, including the assets more specifically described below and added after the date hereof pursuant whether or not required to Section 2.6 be reflected on a balance sheet prepared in accordance with GAAP (collectively, the “Acquired "Assets”):
(a) the real property described on Schedule 2.1(a) ("), including the control buildings and the other buildings and related improvements located thereon) (collectivelywithout limitation, the “Owned Real Property”);
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);following:
(i) all Contracts goodwill of the Business as a going concern;
(ii) all contracts, agreements, leases, instruments, obligations, joint ventures, partnerships, arrangements or other understandings (whether written or oral) (including amendments and supplements, modifications, and side letters or agreements) (the "Business Contracts"), including those identified in effect Section 1.1(a)(ii) of the written statement delivered to Buyer by Seller herewith and dated as of the date of this Agreement that relate primarily to hereof (the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by "Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”Disclosure Schedule");
(jiii) all customer lists trade accounts receivable and customer information databases all notes, bonds and other evidences of indebtedness and rights to receive payments arising out of sales ("Accounts Receivable"), including customer load data); vendor lists; operational those identified in Section 1.1(a)(iii) of the Seller Disclosure Schedule;
(iv) all marketing, sales and performance data for the Acquired Assetspromotional literature, GIS informationbooks, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studiesfinancial records, reportsbills, creative accounting, internal and audit records, operating manuals, personnel records, customer and supplier lists and files, preprinted materials and similar materials;
(v) all rights, advertising title and promotional materialsinterests in and to all real property leases, including improvements, fixtures, fittings thereon and other writtenappurtenances thereto, printed or electronic materials, including those identified in each case, Section 1.1(a)(v) of the Seller Disclosure Schedule;
(vi) all rights to the extent primarily all telephone numbers related to the VA Distribution Business in and the Transferred Territory rights to the names "Monarchy" and in Seller’s possession or in "Manchester;"
(vii) all intangible assets, including Intellectual Property, including the possession Intellectual Property listed on Section 1.1(a)(vii) of any third parties within Seller’s reasonable control or influencethe Seller Disclosure Schedule;
(kviii) all Permits of Sellerpayments, deposits (including Transferable Permitssecurity deposits) and prepaid expenses and all rights to insurance proceeds related to Assets, that relate primarily to the VA Distribution Business in the Transferred Territoryif any;
(lix) all unexpired warranties relating raw materials, components, work-in-process, finished products, inventory, office and other supplies, spare parts, packaging materials, samples and other accessories related thereto, wherever located, including any of the foregoing purchased subject to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenueany conditional sales or title retention agreement in favor of any other Person, together with all rights against suppliers of such inventories;
(x) all furnishings, furniture, fixtures, equipment, tools, machinery, vehicles, art work and other tangible personal property, including the tangible personal property listed on Section 1.1(a)(x) of the Seller Disclosure Schedule;
(xi) all rights under warranties, representations and guarantees made by suppliers, manufacturers or contractors;
(xii) all Permits, including the Permits listed on Section 1.1(a)(xii) of the Seller Disclosure Schedule to enforcethe extent such Permits are transferable by Seller;
(xiii) all cash and cash equivalents such as bank deposits, execute on certificates of deposit and marketable securities; and
(xiv) all claims and causes of action against other Persons (regardless of whether or collect the samenot such claims and causes of action have been asserted), and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claimsof indemnity, causes of actionwarranty rights, rights of recoverycontribution, rights to refunds, rights of set off reimbursement and other rights of recoupment recovery (regardless of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent whether such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory Assetsare currently exercisable).
Appears in 1 contract
Acquired Assets. On Upon the terms and subject to the provisions and conditions of this Agreement, at the Closing, the applicable Seller will shall, or shall cause its applicable Affiliate to, sell, assign, convey, transfer and deliver convey to BuyerPurchaser, and Buyer will Purchaser shall purchase, assume acquire and acquire accept from Seller, free and clear of all Encumbrances except for Permitted Encumbrancessuch applicable Seller or Affiliate, all of Seller’s such Person's right, title and interest in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective TimeClosing in (1) those assets set forth in Section 2.1(a) of the Seller Disclosure Letter, except (2) all Intellectual Property (other than Patents and Marks) primarily used, or held primarily for use in, the operation of the Business and (3) all of the assets expressly excluded below exclusively used, or excluded held exclusively for use, in Section 2.2the operation of the Business (other than in each of cases (2) and (3), including any Excluded Assets), including:
(i) (A) one hundred percent (100%) of the assets more specifically described below equity interest in eSpeed Technology Services, L.P. and added after eSpeed Technology Services Holdings, LLC (the date hereof pursuant to Section 2.6 "TSA Entities"); and (collectivelyB) one hundred percent (100%) of the equity interest in Kleos Managed Services, L.P. and Kleos Managed Services Holdings, LLC (together, the “"Kleos Entities" and together with the TSA Entities, the "Acquired Assets”):
(a) the real property described on Schedule 2.1(a) (including the control buildings Subsidiaries" and the other buildings and related improvements located thereon) (collectivelyequity described in this clause Section 2.1(a)(i), the “Owned Real Property”"Acquired Subsidiary Equity");
(bii) all (A) each Contract set forth on Section 2.1(a)(ii) of Seller’s Easements in the Transferred Territory that are primarily Seller Disclosure Letter, if related exclusively to the VA Distribution Business, including then in its entirety, and if not related exclusively to the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectivelyBusiness, the “Transferred Easements”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used then only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles (and trailers owned by Seller, preserving the Acquired Assets will only include meaning of) those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights portions of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) it that relate to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred TerritoryBusiness; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(iB) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller Contract executed after the date of this Agreement and prior to the Closing and executed in compliance with Section 6.1(b), if related exclusively to the Business, then in its entirety, and if not related exclusively to the Business, then only with respect to (and preserving the meaning of) those portions of it that relate to the Business (collectively, such Contracts or portion of such Contracts, as the case may be, the "Acquired Contracts"); provided, that Sellers may update Section 2.1(a)(ii) of the Seller Disclosure Letter no later than two (2) Business Days prior to the Closing Date to account for Contracts that were entered into in compliance with Section 6.1(b)(vii) and Section 6.1(b)(viii) and to account for any Contracts that have terminated after the date of this Agreement and prior to the Closing Date in accordance with their terms;
(iii) the terms Leased Real Property set forth on Section 2.1(a)(iii) of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 Seller Disclosure Letter (collectively, the “Transferred Contracts”"Acquired Leased Real Property");
(jiv) subject to the license granted pursuant to Section 6.16, the Intellectual Property set forth on Section 2.1(a)(iv) of the Seller Disclosure Letter and subject to the grant of the license pursuant to Section 6.12, the Business Marks (collectively with Section 2.1(a)(2), the "Acquired Intellectual Property");
(v) the Tangible Personal Property set forth on Section 2.1(a)(v) of the Seller Disclosure Letter; provided, that Sellers may update Section 2.1(a)(v) of the Seller Disclosure Letter no later than two (2) Business Days prior to the Closing Date to account for Tangible Personal Property that has been replaced in the Ordinary Course after the date of this Agreement and prior to the Closing Date;
(vi) the Employment Agreements set forth in Section 2.1(a)(vi) of the Seller Disclosure Letter (the "Assumed Employment Agreements") and the Consulting Agreement set forth in Section 2.1(a)(vi) of the Seller Disclosure Letter (the "Assumed Consulting Agreement");
(vii) all customer lists Prepaid Expenses and customer information databases all Commissions Receivables;
(including customer load data); vendor lists; operational viii) all property and performance data casualty insurance proceeds received or receivables in connection with (A) the loss or destruction of any asset or property that would have been included in the Acquired Assets but for such loss or destruction and (B) any damage to any of the Acquired Assets, GIS informationother than such proceeds used to purchase replacement assets or properties that are included in the Acquired Assets;
(ix) all claims, books causes of action, defenses and rights of offset or counterclaim, or settlement agreements (in any manner arising or existing, whether xxxxxx or inchoate, known or unknown, contingent or non-contingent) relating to any of the Acquired Assets or Assumed Liabilities, other than any Retained Claim;
(x) goodwill of the Business; and
(xi) a copy of all books, records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studiescorrespondence, reportslists (including customer lists), creative materials, advertising studies and promotional materials, reports and other written, printed or written materials (whether in hard copy or electronic materialsform), in each case, to the extent primarily exclusively related to the VA Distribution Business Business. All assets set forth in this Section 2.1(a) are collectively referred to as the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the "Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory Assets."
Appears in 1 contract
Acquired Assets. On At the terms and subject to the conditions time of this Agreement, at the Closing, Seller will sell, assign, convey, agrees to --------------- transfer and deliver to Buyer, and Buyer will purchase, assume and acquire from Seller, free and clear of all Encumbrances except for Permitted Encumbrances, all of Seller’s right, title title, and interest in and to all of intangible, with the exception of Seller's equity interest in Vision Interactive Co. Ltd., and Buyer agrees to acquire such assets used by Seller to carry out its VA Distribution Business in (collectively the Transferred Territory as of the Effective Time"Acquired Assets"), except for the assets expressly excluded below or excluded in Section 2.2including, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectivelywithout limitation, the “Acquired Assets”):following:
(a) the real property described on Schedule 2.1(a) (including Intellectual Property and all goodwill associated therewith, and rights to protection of interests therein under the control buildings and the other buildings and related improvements located thereon) (collectivelylaws of all jurisdictions, including, without limitation, the “Owned Real Property”)assignment of patents and copyright and trademark registrations pursuant to and as listed in the Intellectual Property Assignment Agreement, included in Exhibit B and --------- incorporated herein by reference;
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements Contracts listed on Schedule 2.1(b2.2(b) (including and all of the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”)rights thereunder;
(c) all of the substations, control buildings, service centers rights of Seller provided for in the agreements between Seller and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included Buyer listed on Schedule 2.2(a2.2(c); Schedule 2.1(c)(1) lists all , such agreements to be superseded and terminated by this Agreement as of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred TerritoryClosing;
(d) the Distribution Facilitieslease and/or sub-lease rights set forth on Schedule 2.2(d);
(e) Buyer’s Shared Equipmentall accounts receivable, notes, and other receivables associated with the Business, including, without limitation, the accounts receivable set forth on Schedule 2.2(e);
(f) all Inventoriesclaims, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1deposits, prepayments, refunds, causes of action, chooses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) or 2.1(c)(2) or deemed relating to be included as an Acquired Asset pursuant to Section 2.6(c) hereofthe Business;
(g) except for franchises, approvals, permits, licenses, orders, registrations, certificates, variances, and similar rights obtained from governments and governmental agencies relating to the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g)Business;
(h) subject to Section 2.5books, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; providedrecords, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studiescorrespondence, reportslists (including customer lists), product specifications, creative materials, advertising and promotional materials, studies, reports, and other written, printed or electronic materials, in each case, written materials relating to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influenceBusiness;
(ki) all Permits of Sellerleaseholds and subleaseholds therein, including Transferable Permitsimprovements, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the samefixtures, and all fittings thereon, and easements, rights-of-way, and other appurtenants thereto (such as appurtenant rights relating in and to public streets) needed to operate the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred TerritoryBusiness; and
(uj) the rights and obligations tangible personal property related to Regulatory Assetsthe Business (such as machinery, equipment, inventories of raw materials and supplies, manufactured and purchased parts, goods in process and finished goods, furniture, and automobiles), including, without limitation, the inventory and equipment listed on Schedule 2.2(j), which list shall include, as a separate category, any equipment or materials that have been provided to Seller pursuant to Contracts and that Buyer may have an obligation to return or make available to third parties or may otherwise need to complete performance of such Contracts.
Appears in 1 contract
Acquired Assets. On Subject to the terms and subject to the conditions of set forth in this Agreement, at the ClosingClosing referred to in Section 4 hereof, the Seller will shall sell, assign, convey, transfer and deliver to Buyer, and Buyer will purchase, assume and acquire from Sellerdeliver, free and clear of all Encumbrances except for Permitted EncumbrancesEncumbrances (as defined in Section 6.8), to the Buyer, and the Buyer shall purchase, acquire and take assignment and delivery of, all of the following assets wherever situated (all of which assets are hereinafter referred to collectively as the "ACQUIRED ASSETS"):
(a) All of the Seller’s right's title to, interest in and rights and claims under the real property leases (the "REAL ESTATE LEASES") described on SCHEDULE 1.1(a), relating to the properties therein described and the buildings and other structures or improvements thereon and, to the extent located on the property subject to the Real Estate Leases, any and all fixtures, attached thereto or located thereon (the "LEASED REAL PROPERTY");
(b) All machinery, installations, equipment, furniture, computers, spare parts, supplies, materials and other personal property located at the Leased Real Property, whether or not reflected on the books or financial statements of the Seller, as set forth on SCHEDULE 1.1(b) hereto or as may otherwise be located at the Leased Real Property, with such additions thereto and deletions therefrom as may hereafter arise in the ordinary course of business prior to the Closing (the "EQUIPMENT");
(c) All of the Seller's title to, interest in and rights under the leases of personal property described on SCHEDULE 1.1(c) hereto (the "PERSONAL PROPERTY LEASES");
(d) The inventories, including raw materials, work in process and finished goods, directly related to the Business, whether or not reflected on the books or financial statements of the Seller, set forth on SCHEDULE 1.1(d) hereto (the "INVENTORIES");
(e) To the extent listed on SCHEDULE 1.1(e) hereto, all contract rights, manufacturer's warranties on the Acquired Assets, the unfilled sales for computer technology products made by the Seller and the unfilled purchase orders issued by Seller as of the Closing Date (the "OTHER CONTRACTS");
(f) To the extent assignable by Seller, the Seller's rights under the licenses, permits, regulatory or governmental approvals or authorizations or consents described on SCHEDULE 1.1(f) (the "PERMITS");
(g) The Seller's rights, title and interest in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective Timetrademarks, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the “Acquired Assets”):
(a) the real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”);
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substations, control buildingstrade names, service centers marks, corporate names, copyrights, licenses and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that applications with respect to vehicles the foregoing, production records, technical information, manufacturing know-how, processes, trade secrets, internet domain names, e-mail addresses, goodwill, customer and trailers owned by Sellersupplier lists, the Acquired Assets will price lists and other intangible assets, only include those vehicles and trailers as set forth on Schedule 2.1(gSCHEDULE 1.1(g) hereto (the "INTANGIBLES");
(h) subject The trade accounts receivable, notes receivable, deposits, commissions, refunds and miscellaneous receivables of the Seller, directly related to Section 2.5the Business in each case as of the Closing Date hereof, all rights of Seller as lessee under the leases set forth on Schedule 2.1(hSCHEDULE 1.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory"ACCOUNTS RECEIVABLE"); provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);and
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, The books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties records relating to the Acquired Assets;
(m) all Accounts Receivable , including but not limited to, business records, financial, tax, manufacturing and Unbilled Revenuepurchase records, together with all rights to enforcerepair and warranty records, execute on or collect the sameproduction and inventory records, sales records, and all rights promotional, marketing and advertising literature, documents relating to ownership, use, maintenance or repair of any of the Customer Deposits (but not the cash related to Acquired Assets, such deposits);
(n) all claimsas specifications, causes of actioninspection records and inventory records, rights of recoveryprice lists, rights of set off customer and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE supplier lists, payroll and personnel records for the Transferred Territory pursuant to the PJM AgreementsHired Employees (as defined in Section 11.2) and correspondence with customers, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory manufacturers, vendors and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory Assetssuppliers.
Appears in 1 contract
Samples: Asset Purchase Agreement (McSi Inc)
Acquired Assets. On Upon the terms and subject to the conditions of this Agreement, at the ClosingClosing provided for in Section 2.7, Seller will in each case subject to Section 2.11, Seller, on an as-is, where-is basis (except as otherwise expressly provided herein), shall sell, convey, assign, convey, transfer and deliver to BuyerPurchaser, and Buyer will purchase, assume Purchaser shall purchase and acquire from Seller, free and clear of all Encumbrances except for Permitted Encumbrances, all of Seller’s right, title and interest in and to all of the property, assets used and rights owned, leased or licensed by Seller relating to carry out its VA Distribution Business or used in the Transferred Territory Operations (other than the Excluded Assets), of every kind, character and description, whether tangible, intangible, real, personal or mixed and wheresoever located, whether carried on the books of Seller or not carried on the books of Seller due to expense, full depreciation or otherwise, as of the Effective Time, except for same may exist on the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 Closing Date (collectively, the “Acquired Assets”), expressly subject to the Assumed Liabilities and Permitted Liens. Such Acquired Assets shall include, without limitation, the following (except to the extent that they are Excluded Assets):
(a) All of Seller’s right, title and interest in and to the real IKONOS Satellite System;
(b) All of Seller’s right, title and interest in and to all tangible personal property described on Schedule 2.1(a) (including owned or leased by Seller or, subject to the control buildings terms and conditions of the other buildings Government Contract to which such tangible personal property relates, furnished to Seller by a Governmental Body relating to or used in the Operations, including, without limitation, all furniture, fixtures, computer equipment, furnishings, tools, machinery, spare parts, motor vehicles, leasehold improvements and related improvements located thereon) equipment (collectively, the “Owned Real PropertyEquipment”);
(b) , and all manufacturers’ warranties associated with such items, including, without limitation, the list of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed Equipment set forth on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) All of Seller’s right, title and interest in and to all inventory, work-in-process, components, finished goods, parts, supplies, raw materials and other items owned or leased by Seller relating to or used in the Operations (collectively, the “Inventory”), as well as all manufacturers’ warranties associated with such items, including, without limitation, the list of Inventory set forth on Schedule 2.1(c);
(d) All of Seller’s right, title and interest in and to all Intellectual Property and all IP Licenses (but in the case of Intellectual Property licensed to Seller by third parties, only such rights as Seller has under the IP Licenses in question), in both cases relating to or used in the Operations (collectively, the “Assigned IP Assets”), including, without limitation, the list of Assigned IP Assets set forth on Schedule 2.1(d);
(e) All of Seller’s right, title and interest in and to all claims, deposits, prepayments, warranty and guarantee rights, refunds and rebates and similar items relating to the Operations;
(f) All of Seller’s rights under, and interest in, all agreements, arrangements, contracts, notes, bonds, loans, instruments, mortgages, indentures, leases (including operating leases), conditional sales contracts, licenses (including, without limitation, all IP Licenses), franchises, understandings, commitments and other binding arrangements (collectively, “Contracts”) relating to the Operations to which Seller is a party or by or to which the Acquired Assets are bound or subject (collectively, the “Assigned Agreements”), including, without limitation, the list of Assigned Agreements set forth on Schedule 2.1(f);
(g) To the extent transferable under applicable Law, all of Seller’s right, title and interest in and to all permits, authorizations, licenses, or approvals issued by any Government Body held by Seller relating to or used in the substationsOperations (the “Seller Permits”), control buildingsincluding, service centers and other buildingswithout limitation, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business the list of Material Permits set forth on Schedule 2.1(g)(i) (a the “Shared LocationMaterial Permits”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all any other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers Permits set forth on Schedule 2.1(g2.1(g)(ii);
(h) subject All of Seller’s right, title and interest in and to Section 2.5all insurance policies (including, without limitation, the in-orbit insurance for the IKONOS Satellite) for the benefit of Seller in respect of the Operations or Acquired Assets (excluding the D&O insurance), and all rights of Seller as lessee every nature and description under or arising out of such policies, including, without limitation, the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers list of such policies set forth on Schedule 2.1(h);
(i) All of Seller’s right, title and interest in and to all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement original or copies (in accordance with Section 2.2(a)) of all books, records, and other documents (whether on paper, computer diskette, tape or other storage media) used in the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 Operations (collectively, the “Transferred ContractsBooks and Records”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS informationincluding, books and records; meter reading and service data; operatingbut not limited to, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, satellite health status reports, creative materialstax records, property records, purchase and sales records, credit data, marketing, advertising and promotional materials, personnel files and other written, printed or electronic materials, in each case, payroll records (relating to the extent primarily related Transferred Employees), accounting records, financial reports, fixed asset lists, customer lists, customer records and information, supplier lists, parts lists, manuals, technical and repair data, correspondence, files and any similar items;
(j) All of Seller’s right, title and interest in and to all rights, Claims and causes of action against third parties (other than the Manager or members of the Seller) relating to the VA Distribution Business in Operations, including, but not limited to, all rights against suppliers under warranties covering any of the Transferred Territory Acquired Assets, including, without limitation, those rights, Claims and in Seller’s possession or in the possession causes of any action against third parties within Seller’s reasonable control or influenceset forth on Schedule 2.1(j);
(k) all Permits All of Seller’s right, including Transferable Permitstitle and interest in and to all stationery, that relate primarily forms, labels, shipping materials, brochures, art work, photographs, advertising materials and any similar items relating to the VA Distribution Business or used in the Transferred TerritoryOperations;
(l) all unexpired warranties relating All of Seller’s right, title and interest in and to its library of archived geo-spatial imagery, wherever located and regardless of the Acquired Assetsmedia on which it is stored;
(m) All of Seller’s right, title and interest in and to all Accounts Receivable Owned Real Property and Unbilled RevenueLeased Real Property, including, without limitation, the list of such real properties set forth in Schedule 2.1(m), together with all rights to enforce, execute on or collect the same, any and all rights relating to the Customer Deposits (but not the cash related easements for ingress, egress and utilities which are attendant to such deposits)property and all other appurtenances thereto;
(n) All of Seller’s right, title and interest in and to all claims, causes of action, rights of recovery, rights of set off and rights of recoupment accounts receivable of Seller against third parties to the extent relating to the Assumed ObligationsOperations as of the Closing Date (including rights to payment for services that have been performed but have not been billed prior to the Closing Date);
(o) All of Seller’s right, title and interest in and to all Intellectual Property described in Schedule 2.1(o) (goodwill associated with the “Acquired Intellectual Property”)Operations;
(p) rights All of Seller’s right, title and interest in the bank accounts set forth on Schedule 2.1(p) (the “Transferred Bank Accounts”); provided that Seller shall be entitled to CRRs to which Seller is entitled as an LSE for retain one of the Transferred Territory pursuant Bank Accounts upon written notice to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable Purchaser prior to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase AgreementsClosing;
(q) rights to serve the existing certified service territory of Seller All cash on hand, cash equivalents, bank accounts and short-term instruments (including restricted cash in the portion respect of the Commonwealth items set forth in Section 2.1(e)) and all similar types of Virginia described investments, such as certificates of deposit, treasury bills and other marketable securities, as of the Closing Date (whether or not such cash is held in Annex A hereto;a Transferred Bank Account) and
(r) All of Seller’s right, title and interest in and under the Transferring Employee RecordsPlans and any associated trust, to insurance and service agreements or contracts entered into, and all books, records, files, documents and papers created, filed or maintained, in connection with the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory AssetsPlans.
Appears in 1 contract
Acquired Assets. On At the terms Closing and subject to the terms and conditions of this Agreement, at the ClosingBuyer shall purchase from Seller, and Seller will shall sell, transfer, assign, conveyconvey and deliver, transfer or cause to be sold, transferred, assigned, conveyed and deliver delivered, to Buyer, all right, title and Buyer will purchaseinterest in and to all of the assets whether real, assume personal and acquire from mixed, tangible or intangible, used directly or indirectly by Seller in or otherwise relating to the Business as owned or held by Seller, free except as expressly excluded in Section 1.2 (all such assets and clear rights being purchased hereunder are collectively referred to as the "Acquired Assets"). Without in any way limiting the generality of all Encumbrances except for Permitted Encumbrancesthe foregoing, the Acquired Assets shall include all of Seller’s 's right, title and interest in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory following, wherever located, as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the “Acquired Assets”):Closing Date:
(a) all accounts receivables related to the real property described on Schedule 2.1(a) Business (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”"Acquired Accounts Receivables");
(b) all finished goods, works-in-process, raw materials, parts and other items of Seller’s Easements in inventory and supplies wherever located which are owned by Seller as of the Transferred Territory that are primarily related to Closing Date (the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”"Inventories");
(c) all of the substationsfurniture, control buildings, service centers and other buildingsequipment, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territorycomputer hardware;
(d) all of Seller's customer lists, customer mailing lists and customer sales files which are used in connection with the Distribution Facilitiesoperation of the Business;
(e) Buyer’s Shared Equipmentall of Seller's interest and rights in and to the agreements, contracts and commitments to which Seller is a party or by which its assets are bound (except for those agreements, contracts and commitments of Seller's subsidiaries, which are addressed separately pursuant to Section 1.1(g) hereof) and all sale orders entered into or received by Seller in the Ordinary Course and such other agreements of Seller to the extent assignable to Buyer (collectively, the "Seller Contracts");
(f) all Inventoriescomputer software and programs and any rights thereto associated with or employed in the conduct of the Business of Seller, but excluding those Inventories except to the extent that any such documents are subject to confidentiality agreements limiting their release and the Seller shall not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed have obtained consent to be included as an Acquired Asset pursuant to Section 2.6(c) hereoftheir release;
(g) except for all of Seller's interest and rights in and to the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings outstanding common stock and other personal property that, in securities of each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g)of its subsidiaries;
(h) subject to Section 2.5all payments, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles deposits and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h)prepaid expenses;
(i) all Contracts right, title, and interest in effect as of the date of this Agreement that relate primarily and to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreementsname "Evoke Software Corporation" and any and all names associated with all products sold by Seller, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”)derivations thereof;
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession assets of any third parties within Seller’s reasonable control or influenceemployee benefit plan;
(k) all Permits of Seller, including Transferable Permits, that relate (to the extent the same are transferable) directly or indirectly relating primarily to the VA Distribution Business in the Transferred TerritoryBusiness;
(l) all unexpired warranties relating of Seller's business and marketing records, including copies of accounting and operating records, asset ledgers, inventory records, budgets, customer lists, supplier lists, information and data respecting leased or owned equipment, correspondence, and other business records directly related to the Seller's Business or Seller's Acquired AssetsAssets (except for those records held by Seller's subsidiaries, which are addressed separately pursuant to Section 1.1(g) hereof), in whatever form they exist;
(m) all Accounts Receivable cash on hand, cash equivalents, including, without limitation, certificates of deposit and Unbilled Revenuedeposits, together with all rights to enforce, execute on or collect the samebank and money market accounts, and all rights relating to securities of Seller, except for the Customer Deposits (but not the cash related to such deposits)Excluded Cash;
(n) all claimsoriginal books, causes of action, rights of recovery, rights of set off financial records and rights of recoupment ledgers of Seller against third parties (other than tax returns, minute books and stock records; provided, however, such materials, as they relate to the extent relating Acquired Assets, will be made available for inspection and copying by Buyer upon request) including any such records which are maintained in electronic form, including but not limited to the Assumed Obligationson computer;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”)of Seller;
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory bulk mail postal and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share other mail delivery authorizations agreements and related Permits of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase AgreementsSeller;
(q) all claims, choses-in-action, warranties, refunds, rights of recovery, rights of set-off and rights of recoupment of any kind relating to serve the existing certified service territory payment of Taxes of Seller in and/or the portion of Business for periods after the Commonwealth of Virginia described in Annex A hereto;Closing Date; and
(r) the Transferring Employee Records, all mail or other communications addressed to Seller and directly relating to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory AssetsBusiness.
Appears in 1 contract
Samples: Asset Purchase Agreement (Conversion Services International Inc)
Acquired Assets. On Subject to the terms and subject to the conditions of this Agreementset forth herein, at the Closing, Seller will shall sell, transfer, assign, convey, transfer convey and deliver to BuyerPurchaser, and Buyer will Purchaser shall purchase, assume acquire and acquire accept from Seller, free and clear of any and all Encumbrances except for Permitted EncumbrancesLiens, all of Seller’s right, title and interest in in, to and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as under all of the Effective Timeassets, except properties and rights of every kind and nature, whether real, personal or mixed, tangible or intangible (including goodwill), wherever located and whether now existing or hereafter acquired (other than the Excluded Assets), which relate to, or are used or held for use in connection with, the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 Business (collectively, the “Acquired Assets”):
(a) the real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”);
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);following:
(i) all Contracts in effect accounts or notes receivable held by ALT (other than the Excluded Receivable (as defined below)), and any security, claim, remedy or other right related to any of the date foregoing;
(ii) all inventory of this Agreement that relate primarily to the VA Distribution Business in the Transferred TerritoryALT;
(iii) all Contracts of ALT, including operating agreementsthe Material Contracts set forth on Section 3.8(a) of the Seller Disclosure Schedules, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including the IP Licenses set forth on Section 3.17(b) of the Seller Disclosure Schedules (but excluding any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 ALT listed on Annex 2.1(b)) (collectively, the “Transferred Assigned Contracts”);
(jiv) all customer lists Seller Intellectual Property and customer information databases Seller Technology;
(including customer load data); vendor lists; operational v) all furniture, fixtures, equipment, machinery, tools, vehicles, office equipment, supplies, computers, telephones and performance data other tangible personal property of ALT;
(vi) all Permits that are held by Seller and required for the conduct of the Business as currently conducted or for the ownership and use of the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, case to the extent primarily transferable ;
(vii) all rights to any Claims of any nature available to or being pursued by Seller to the extent related to the VA Distribution Business in Business, the Transferred Territory and in Seller’s possession Acquired Assets or in the possession Assumed Liabilities, whether arising by way of any third parties within Seller’s reasonable control counterclaim or influenceotherwise;
(kviii) all Permits of Sellerprepaid expenses, including Transferable Permitscredits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenueadvance payments, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of actionsecurity, refunds (other than Tax or tariff refunds), rights of recovery, rights of set off and set-off, rights of recoupment recoupment, deposits, charges, sums and fees (excluding any such item relating to the payment of Taxes of any of the Seller Parties);
(ix) all of Seller’s rights under warranties, indemnities and all similar rights against third parties to the extent relating related to the Assumed Obligationsany Acquired Assets;
(ox) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Business Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(uxi) all goodwill and the rights and obligations related to Regulatory Assetsgoing concern value of the Business.
Appears in 1 contract
Acquired Assets. On Subject to the terms and subject to the conditions of this Agreement, at on the ClosingClosing Date, Seller will sellLandos shall sell to the Selling Entities , assign, convey, which in their discretion subsequently may transfer and deliver assign to Buyeran entity or entities to be designated by Agent that is an Affiliate of JBR and the Stockholders (“Buyer Transferee”), and Buyer will purchase, assume and acquire the Selling Entities shall purchase from Seller, free and clear of all Encumbrances except for Permitted EncumbrancesLandos, all of Seller’s Landos’ right, title and interest in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as Acquired Compounds and all of the Effective Timefollowing assets (such assets, except for together with the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectivelyAcquired Compounds, the “Acquired Assets”), other than the Excluded Assets (defined below):
(a) all Intellectual Property Rights specifically relating to the real property described Acquired Compounds, including without limitation the Patent Rights, trademarks and copyrights identified on Schedule 2.1(a) B-1 annexed hereto (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real PropertyAcquired Intellectual Property Rights”);
(b) all of Seller’s Easements in the Transferred Territory that are primarily related existing drug substance and drug product inventory specifically relating to the VA Distribution BusinessAcquired Compounds, including the easements listed without limitation, raw materials, active pharmaceutical ingredient, bulk product, work in process and finished goods, labeling and packaging owned or Controlled by Landos, regardless of where located, such inventory identified on Schedule 2.1(b) B-2 annexed hereto (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred EasementsAcquired Drug Substance and Acquired Drug Product”);
(c) all of INDs related to the substationsAcquired Compounds, control buildings, service centers as and other buildings, fixtures and improvements located on to the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included extent identified on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory B-3 annexed hereto (the “Tangible Personal PropertyAcquired INDs”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of FDA files and other correspondence (including emails) with the date of this Agreement FDA produced since November 6, 2021 and (ii) all FDA files and other correspondence (including emails) with the FDA produced prior to November 6, 2021 that relate primarily to the VA Distribution Business is in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, possession and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date control of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materialsLandos, in each case, to case of the extent primarily related to the VA Distribution Business in the Transferred Territory foregoing clauses (i) and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(kii) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Acquired Compounds and the Acquired Drug Substance and Acquired Drug Product, identified on Schedule 2.1(o) B-4 annexed hereto (the “Acquired Intellectual PropertyFDA Files”);
(pe) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant all manufacturing records and study reports relating to the PJM AgreementsAcquired Compounds and the Acquired Drug Substance and Acquired Drug Product, as and to the extent, identified on Schedule B-5 annexed hereto (the “Acquired Manufacturing Records and Study Reports”); and
(f) all clinical and pre-clinical samples of the Acquired Compounds and the Acquired Drug Substance and Acquired Drug Product, as and to the extent identified on Schedule B-6 annexed hereto (the “Acquired Samples”);
(g) the Assumed Contracts; and
(h) all Books and Records produced since November 6, 2021 and all other Books and Records that to are in the possession and control of Landos, as and to the extent relating to the foregoing, including without limitation those:
(i) pertaining to communications with the FDA, current licensees of any of the Acquired Compounds, clinical research organizations or other vendors involved in preclinical or clinical development or drug formulation or manufacturing of the Acquired Compounds or the Acquired Drug Substance and Acquired Drug Product (including a copy of a list of key contact persons and their contact information);
(ii) pertaining to material communications with potential business partners with respect to potential business alliances or similar business arrangements; or
(iii) consisting of all Auction Revenue Rights databases and raw and processed data, studies, surveys, reports, specifications, methods, drawings and instructions, including those prepared by or for Landos and any Subsidiary or any of their customers (in both hard copy and modifiable electronic copy form). For the avoidance of doubt, (i) with respect to which Seller is entitled any Assumed Contract that are allocable contains any provision limiting, restricting or otherwise prohibiting any third party from disclosing or using information disclosed by Lxxxxx or any Subsidiary, Landos shall not provide or otherwise disclose any information to the Transferred Territory Selling Entities that is not included in the Acquired Assets and (ii) all Financial Transmission Rights for purposes of clauses (d) and (h) above, Landos shall only be required to which Seller is entitled that are allocable deliver to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant Selling Entities any items produced prior to November 6, 2021 that to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory knowledge of Seller Landos are in the portion possession and control of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Landos even though such items are nonetheless Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory Assets.
Appears in 1 contract
Samples: Asset Purchase and Redemption Agreement (Landos Biopharma, Inc.)
Acquired Assets. On At the Closing, subject to the terms and subject to the conditions of set forth in this Agreement, at the Closing, Seller will agrees to sell, assign, convey, transfer transfer, assign and deliver to BuyerPurchaser, and Buyer will Purchaser agrees to purchase, assume acquire and acquire from Seller, free take assignment and clear of all Encumbrances except for Permitted Encumbrancesdelivery of, all of the assets owned by Seller (wherever located) constituting the Business, and all of Seller’s 's right, title and interest therein and thereto, except for those assets specifically excluded in SECTION 1.3 (all of the assets sold, assigned, transferred and delivered to Purchaser hereunder are referred to collectively herein as the "ACQUIRED ASSETS"). The Acquired Assets shall include all of Seller's right, title and interest in and to the following assets to the extent used by Seller to carry out its VA Distribution Business exclusively in connection with the Transferred Territory as business and operations of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the “Acquired Assets”):Business:
(a) Any and all of the real machinery, equipment, installations, furniture, patterns, dies, tools, spare parts, purchased parts, packaging goods, consigned goods, supplies, office equipment, computer hardware or software owned or leased by Seller and used by Seller in the operation of the Business, maintenance equipment and supplies, materials, items of building improvements, and all other tangible personal property described on Schedule 2.1(a) of every kind and description (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”"EQUIPMENT");
(b) all All of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Businessinventories, including all raw materials, work in process and finished goods inventories, wherever located (the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”"INVENTORIES");
(c) all All of the substationslift trucks, control buildingstractors, service centers trailers, boom trucks, automobiles and other buildings, fixtures and improvements located on vehicles (the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a"VEHICLES"); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) All production records, product files, technical information, designs, drawings, laboratory notebooks, confidential information, price lists, marketing plans and strategies, sales records, product development techniques or plans, customer lists and files (including customer credit and collection information), details of client or consultant contracts, operational methods, historical and financial records and files, and other proprietary information, together with the Distribution Facilitiesfollowing papers and records in Seller's care, custody or control or otherwise available to it; all blueprints, building specifications and "as built" plans, all personnel and labor relations records, all employee benefits and compensation plans and records, all environmental control, monitoring and test records, all plant cost records, all maintenance and production records and all plans and designs of buildings, structures, fixtures and equipment (the "INFORMATION AND RECORDS");
(e) Buyer’s Shared EquipmentAll United States and foreign patents, patent applications (including the rights to any and all continuations, divisionals, reissues, reexamination certificates and other derivative applications), patent licenses, service names, service marks, trade names, trademarks, trade name and trademark registrations (and applications therefor), copyrights and copyright registrations (and applications therefor), trade secrets, inventions, processes, designs, know-how and formulae, including all rights in respect of the name and xxxx "Xxxx" and all derivatives thereof, and all goodwill associated with the foregoing, rights under the foregoing, remedies against infringement of the foregoing (including past infringement), and rights to protection of interests in the foregoing under the laws of all jurisdictions (the "Intellectual Property");
(f) all Inventories, but excluding those Inventories Any assets (other than the Excluded Assets) reflected on the September 30 Balance Sheet to the extent not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereofdisposed of in the ordinary course of business (the "OTHER ASSETS");
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g)All goodwill;
(h) subject All accounts and Permits belonging to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) relating exclusively to the extent relating to equipment Acquired Assets or vehicles primarily related the Real Property or exclusively to the VA Distribution Business in operation by Seller of the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h)Business;
(i) All real estate and real property interests, and all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territoryfixtures and other improvements thereto, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”)Facility;
(j) Any and all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assetsaccounts receivable, GIS informationtrade receivables, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, notes receivable and other written, printed or electronic materials, in each case, to receivables (the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence"ACCOUNTS RECEIVABLE");
(k) Except as provided in SECTION 1.3, all Permits of SellerClaims, including Transferable Permitsdeposits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenueprepayments, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claimsrefunds, causes of action, choses in action, rights of recovery, rights of set set-off and rights of recoupment of Seller against third parties to the extent (excluding any such item relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”payment of Taxes);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(ul) Permanent books of account of the rights Division (except that Seller shall have the right to inspect and obligations related to Regulatory Assetscopy the same as may be reasonably necessary after the Closing).
Appears in 1 contract
Acquired Assets. On Upon the terms and subject to the conditions of this Agreement, at on the ClosingClosing Date, Seller will sell, assign, convey, transfer and deliver to Buyershall, and Buyer will purchaseshall cause the applicable Selling Subsidiaries to, assume Transfer to Purchaser, and acquire Purchaser shall purchase from SellerSeller and the applicable Selling Subsidiaries, free and clear of all Encumbrances except for any Liens other than Permitted EncumbrancesLiens, all of Seller’s right, title and interest of Seller and such Selling Subsidiaries in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as all of the Effective Timeassets, except properties and rights of every kind and nature, whether real, personal or mixed, tangible or intangible (including goodwill), wherever located and whether now existing or hereafter acquired (other than the Excluded Assets), which relate to, or are used or held for use in connection with, the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 Crimson Business (collectively, the “Acquired Assets”):) including, without limitation, the following:
(a) the real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”)all Acquired Inventory;
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”)Acquired A/R;
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred TerritoryAcquired Contracts;
(d) the Distribution Facilitiesall Acquired IP;
(e) Buyer’s Shared Equipmentall Acquired Books and Records;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereofPermits;
(g) except for all of the Excluded Tangible Personal Propertyequity ownership interests, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property thatappurtenant rights, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers Joint Venture owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) customer and supplier lists pertaining to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; providedCrimson Business, that with respect to vehicles and trailers subject to an Equipment Lease, only including those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily prepaid expenses, credits, deposits (other than customer deposits) and advance payments to the VA Distribution Business in extent related to the Transferred TerritoryCrimson Business, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”those set forth on Schedule 2.1(i);
(j) all customer lists and customer information databases furniture, fixtures, equipment (including customer load dataoffice, computer and telephone equipment); vendor lists; operational , machinery, tools, dies, molds and performance data for all other tangible personal property located at any Leased Real Property, at the Acquired Assetsfacility of any Selling Company or any Affiliate of a Selling Company, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materialsat any vendor, in each case, to the extent primarily related to the VA Distribution Business case that are owned by a Selling Company and that are used or held for use in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influenceCrimson Business, including, without limitation, such assets set forth on Schedule 2.1(j);
(k) all Permits of Sellertrucks, including Transferable Permitstractors, trailers, railcars or other vehicles that relate primarily to are owned by the VA Distribution Business Selling Companies and used in the Transferred TerritoryCrimson Business, including, without limitation, such assets listed on Schedule 2.1(k);
(l) all unexpired warranties catalogs, sales promotion literature and advertising materials relating to the Crimson Business; provided, however, that Seller should be entitled to retain copies of any such materials that also relate to the Excluded Assets or any businesses of Selling Companies or their Affiliates other than the Crimson Business;
(m) all of the Selling Companies and their respective Affiliates’ goodwill related to the Crimson Business;
(n) to the extent assignable, all rights under warranties, indemnities and all similar rights against third parties to the extent related to any of the Acquired Assets;
(mo) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all any claims, causes suits, actions proceedings or investigations at law or in equity of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties any nature available to or being pursued by such Selling Company or its Affiliates to the extent relating related to the Crimson Business, the Acquired Assets or the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);Liabilities, whether arising by way of counterclaim or otherwise; and
(p) all insurance benefits, including rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant and proceeds, arising from or relating to the PJM AgreementsCrimson Business, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory AssetsAssumed Liabilities.
Appears in 1 contract
Acquired Assets. On (a) Subject to the terms and subject to the conditions of this Agreement, at on the ClosingClosing Date (as defined herein), Seller will (x) Xxxxxx shall purchase from Research, and Research shall sell, transfer, assign, conveyconvey and deliver, transfer or cause to be sold, transferred, assigned, conveyed and deliver delivered, to Buyer, and Buyer will purchase, assume and acquire from Seller, free and clear of all Encumbrances except for Permitted EncumbrancesXxxxxx, all of Seller’s right, title and interest in and to the assets used by Seller to carry out its VA Distribution Business acquired assets, as set forth in the Transferred Territory as Schedule 1.1 of the Effective TimeNext Generation Disclosure Schedule, except for and (y) Xxxxxx shall purchase from Next Generation, and Next Generation shall sell, transfer, assign, convey and deliver to Xxxxxx, all of the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 existing membership interests of Spark (collectively, the “Acquired Assets”):), free and clear of any security interests, obligations, mortgages, pledges, claims, liens, contingencies, restrictions or encumbrances of any kind (“Liens”).
(ab) Without in any way limiting the generality of the foregoing, on the Closing Date, Xxxxxx shall purchase from Research, and Research shall sell, transfer, assign, convey and deliver, or cause to be sold, transferred, assigned, conveyed and delivered, to Xxxxxx, all right, title and interest in and to the following Acquired Assets:
(i) the real property described on contracts, agreements and legally binding instruments (whether in writing or oral) set forth in Schedule 2.1(a1.1(b)(i) (including of the control buildings and the other buildings and related improvements located thereon) Next Generation Disclosure Schedule (collectively, the “Owned Real Property”);
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(jii) the machinery, computers, equipment and supplies set forth in Schedule 1.1(b)(iii) of the Next Generation Disclosure Schedule and all customer lists other tangible or intangible property owned by Research and customer information databases (including customer load data); vendor lists; operational used by Research exclusively in connection with the operation of the Research and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influenceIB Business;
(kiii) all Permits of Seller, including Transferable Permits, that relate primarily the right to the VA Distribution Business in services of the Transferred Territory;
Employees (l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such depositsas defined herein);
(niv) all money security deposits and any advance payments made with respect to Assumed Liabilities (as defined herein); and
(v) all rights of recovery, defenses, setoffs and counter claims of any kind directly relating to or directly affecting the Acquired Assets or the Assumed Liabilities, including, but not limited to, claims, causes of action, rights of recovery, rights of set off action and rights of recoupment of Seller against third parties under, pursuant to or arising from all warranties, representations, guarantees and agreements made by Persons (as defined herein) in connection with the extent relating to Acquired Assets and the Assumed Obligations;Liabilities, provided that Next Generation shall have and retain the right (without in any way limiting the rights transferred to Xxxxxx Securities hereunder) to assert claims, causes of action and rights against Persons in connection with Next Generation’s indemnification obligations hereunder.
(oc) all Intellectual Property described Without in Schedule 2.1(o) (any way limiting the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for generality of the Transferred Territory pursuant to the PJM Agreementsforegoing, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant Closing Date, Xxxxxx shall purchase from Next Generation, and Next Generation shall sell, transfer, assign, convey and deliver, or cause to the PJM Agreementsbe sold, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Recordstransferred, assigned, conveyed and delivered, to Xxxxxx, the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory AssetsSpark Equity.
Appears in 1 contract
Acquired Assets. On the terms and subject to the conditions set forth in this Agreement and, subject to approval of this Agreementthe Bankruptcy Court, pursuant to Sections 105, 363 and 365 of the Bankruptcy Code, at the Closing, Seller will the Sellers shall sell, assign, conveytransfer, transfer convey and deliver to Buyerthe Purchaser, and Buyer will purchase, assume the Purchaser shall purchase and acquire accept from Seller, free and clear of all Encumbrances except for Permitted Encumbrancesthe Sellers, all of Seller’s right, title and interest of the Sellers in and to the rights, properties and assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective TimeSellers, except for wherever located, whether tangible or intangible, as the assets expressly excluded below or excluded in Section 2.2, including same shall exist on the assets more specifically described below and added after the date hereof pursuant to Section 2.6 Closing Date (collectively, the “Acquired Assets”):), that are listed or described below and in the manner described below:
(a) the real property Purchaser shall acquire all the Contracts and all rights thereunder (the “Assigned Contracts”) listed or described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”);1.1(a):
(b) the Purchaser shall acquire all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Businessrights and remedies under all warranties, including the easements listed on Schedule 2.1(b) (including the control buildings representations and the other buildings guarantees made by suppliers, manufacturers and related improvements located thereon) (collectively, the “Transferred Easements”)contractors;
(c) the Purchaser shall acquire all of the substationsinventory, control buildingsfinished goods, service centers works in process, raw materials and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territorypackaging materials;
(d) the Distribution FacilitiesPurchaser shall acquire all (i) patents and patent applications, including provisionals, continuations, continuations-in-part, divisionals, substitutions, reissues, reexaminations and any extensions and supplementary protection certificates; (ii) trademarks, service marks, trade dress, trade names, logos, slogans, Internet domain names and other similar designations of source or origin, together with the goodwill symbolized by, and any registrations and applications for, the foregoing; (iii) copyrights and database rights, and any copyright registrations and applications; (iv) trade secrets, including trade secret rights in inventions, discoveries, know-how, proprietary processes, formulae, protein sequences, standards for comparison, research and development information, clinical data, cell lines, dedicated toll free product lines, manufacturing technology and data, marketing and sales information, customer lists and supplier lists; and (v) any other intellectual property rights recognized in any relevant jurisdiction (collectively, “Intellectual Property”), including such of the foregoing as are listed or described on Schedule 1.1(d) or Schedule 1.1(l);
(e) Buyer’s Shared Equipmentthe Purchaser shall acquire all rights under non-disclosure or confidentiality, invention and Intellectual Property assignment, non-compete or non-solicitation agreements for the benefit of the Sellers with current or former employees and agents of the Sellers or with third parties (in the case of rights under the Parent Confidentiality Agreements, solely to the extent provided in Section 5.13(b));
(f) all Inventoriesthe Purchaser shall acquire the Biologics License related to the approval of the Biologics License Application from the FDA with respect to the drug product Krystexxa, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed and, subject to be included as an Acquired Asset pursuant and in accordance with Section 5.17, the marketing authorization granted by the European Commission, with respect to Section 2.6(c) hereofthe drug product Krystexxa;
(g) except for the Excluded Tangible Personal PropertyPurchaser shall acquire to the extent transferable, all other machinery (mobile or otherwise), equipment (including computer Permits and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g)all pending applications therefor;
(h) subject to Section 2.5, all rights of Seller other than as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”1.2(c) or Section 1.2(l);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to transferable, the VA Distribution Business in the Transferred Territory Purchaser shall acquire all insurance policies and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties rights thereunder relating to the Acquired Assets;
(mi) other than as set forth in Section 1.2(f) or Section 1.2(g), the Purchaser shall acquire all Accounts Receivable books and Unbilled Revenue, together records relating to the Acquired Assets;
(j) the Purchaser shall acquire all goodwill associated with the Acquired Assets and the Assumed Liabilities;
(k) the Purchaser shall acquire the approval of the Biologics License Application from the FDA and all rights to enforceotherwise commercialize, execute on or collect develop and distribute the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller drug product Krystexxa in the portion United States of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits America and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territoryits territories; and
(ul) the rights and obligations related Purchaser shall acquire the assets set forth on Schedule 1.1(l) to Regulatory Assetsthe extent not set forth in items (a) through (k) above. EXCEPT AS SPECIFICALLY AND EXPRESSLY SET FORTH IN ARTICLE III, (I) THE SELLERS MAKE NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, RELATING TO THE ACQUIRED ASSETS, THE ASSUMED LIABILITIES OR THE BUSINESS, INCLUDING ANY REPRESENTATION OR WARRANTY AS TO VALUE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR FOR ORDINARY PURPOSES, OR ANY OTHER MATTER, (II) THE SELLERS MAKE NO, AND HEREBY DISCLAIM ANY, OTHER REPRESENTATION OR WARRANTY REGARDING THE ACQUIRED ASSETS, THE ASSUMED LIABILITIES OR THE BUSINESS AND (III) THE ACQUIRED ASSETS AND THE ASSUMED LIABILITIES ARE CONVEYED ON AN “AS IS, WHERE IS” BASIS AS OF THE CLOSING, AND THE PURCHASER PARTIES SHALL RELY UPON THEIR OWN EXAMINATION THEREOF. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE SELLERS MAKE NO REPRESENTATION OR WARRANTY REGARDING ANY BUSINESS OTHER THAN THE BUSINESS, ANY ASSETS OTHER THAN THE ACQUIRED ASSETS OR ANY LIABILITIES OTHER THAN THE ASSUMED LIABILITIES, AND NONE SHALL BE IMPLIED AT LAW OR IN EQUITY.
Appears in 1 contract
Samples: Acquisition Agreement (Savient Pharmaceuticals Inc)
Acquired Assets. On Upon the terms and subject to the conditions of this Agreement, at the Closing, Buyer agrees to acquire from Seller will and its Subsidiaries, and Seller agrees (or, to the extent indicated on Schedule 2.01 to be delivered by Buyer prior to the Closing Date, an Affiliate of Buyer) to sell, assigntransfer, conveyassign and deliver and to cause its Subsidiaries to sell, transfer transfer, assign and deliver to Buyer (or, to the extent indicated on Schedule 2.01 to be delivered by Buyer prior to the Closing Date, an Affiliate of Buyer, and Buyer will purchase, assume and acquire from Seller), free and clear of all Encumbrances except for Liens other than Permitted EncumbrancesLiens, but subject, in the case of any Intellectual Property, to any licenses retained by or granted to Seller pursuant to the Intellectual Property Agreement, all of Seller’s or its Subsidiary’s right, title and interest in and to to, as the assets used by Seller to carry out its VA Distribution Business in case may be, the Transferred Territory following assets, as of the Effective Time, except for same shall exist on the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 Closing Date (collectively, the “Acquired Transferred Assets”):
(a) all collateral materials, brochures, manuals, promotional materials, sales materials, display materials and product information materials related exclusively to the real property described on Schedule 2.1(a) (including the control buildings Business and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”)solely owned by Seller or its Subsidiaries;
(b) all up to $170,000 of Seller’s Easements in the Transferred Territory that are primarily related Equipment, as selected by Buyer pursuant to Section 5.18, and which is described or listed and with the valuations set forth on Schedule 2.01(b) to be delivered by Buyer to Seller prior to the VA Distribution Business, including Closing Date according to the easements listed on Schedule 2.1(b) terms set forth in Section 5.18 (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred EasementsEquipment”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included Contracts that are listed on Schedule 2.2(a2.01(c) (the “Assumed Contracts”); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution FacilitiesTransferred Patents;
(e) Buyer’s Shared Equipmentthe Transferred Trade Secrets;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereofthe Transferred Copyrights;
(g) except for the Excluded Tangible Personal PropertyPermits, all but only to the extent transferable or assignable without additional cost to Seller or its Subsidiaries (other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned than nominal administrative filing fees which shall be paid by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under Prepayments associated with the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment Assumed Contracts or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h)other Assumed Liabilities;
(i) all Contracts in effect as a list of current customers of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”)Business;
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, Finished Inventory with an aggregate value of up to $6,580,000 pursuant to the extent primarily related terms of the Transition Services Agreement (provided that title to such Finished Inventory shall pass to Buyer at such time and subject to the VA Distribution Business conditions set forth in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influenceTransition Services Agreement);
(k) all Permits of data to be extracted from Seller’s databases and delivered to Buyer in accordance with, including Transferable Permitsand at such times provided for in, that relate primarily to the VA Distribution Business in the Transferred Territory;Transition Services Agreement; and
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily goodwill related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory AssetsBusiness.
Appears in 1 contract
Acquired Assets. On the terms and subject to the terms and conditions of this Agreement, at the ClosingBuyer shall purchase from Seller, and Seller will shall sell, assigntransfer, convey, transfer convey and deliver to Buyer, all of the Acquired Assets at the Closing for the consideration specified in Section 2.5. The Acquired Assets include all of the right, title, and Buyer will purchaseinterest that Seller possesses in and to all of the assets, assume properties and acquire from rights of Seller, whether real, personal, tangible or intangible, of every kind, nature and description used by Seller or relating to the operation of the Business, free and clear of all Encumbrances except for any Indebtedness, Liens and obligations whatsoever other than the Assumed Liabilities and the Permitted EncumbrancesExceptions, all including, without limitation, the following items, but excluding therefrom the Excluded Assets (collectively, the "Acquired Assets"):
(a) All of Seller’s 's right, title and interest in and in, to or under the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the “Acquired Assets”):
(a) the real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”), any lease thereof, and any other interests therein;
(b) all tangible personal property of Seller’s Easements in the Transferred Territory that are primarily related , wherever located, including, but not limited to, all machinery, equipment (including, but not limited to, gaming devices and machines, bill validators and coin counters), Inventory, supplies, materials, xxxxs, furniture, fixtures, computers, computer systems and software, websites, office equipment, vehicles and other articles of personal property relating to the VA Distribution Business, including Business (the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”"Tangible Property");
(c) general intangibles, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all of the substationsjurisdictions, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included as set forth on Schedule 2.2(a2.1(c); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution FacilitiesAssigned Contracts set forth on Schedule 2.1(d);
(e) Buyer’s Shared Equipmentall Accounts Receivable and all customer credits that remain outstanding as of the Closing Date;
(f) all Inventoriesdeposits, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed prepayments and prepaid assets relating to be included the Business as an Acquired Asset pursuant of the Closing Date, other than as specifically referenced herein and subject to the prorations set forth in Section 2.6(c) hereof2.10;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g)Casino Cash;
(h) subject all trademarks and trade names relating to Section 2.5the Business, including, but not limited to, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment trade names, business names and trade dresses incorporating Mountain High Casino, including, without limitation, those trademark registrations or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers applications for trademark registrations set forth on Schedule 2.1(h), and all other intellectual property used in the Business;
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territoryextent assignable by Seller to Buyer, all rights, claims, credits, suits, actions, demands, hearings, proceedings, judgments, orders, injunctions, writs, awards, decrees and rulings of any Governmental Entity relating to any Acquired Asset or any Assumed Liability, including operating agreementsany such items arising under guarantees, franchise agreementswarranties, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, indemnities and including similar rights in favor of Seller in respect of any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 Acquired Asset or Assumed Liability (collectively, "Seller Claims"), other than Seller Claims necessary to offset claims against Seller set forth on Schedule 2.1(i) and the “Transferred Contracts”)Hyatt Claims;
(j) all customer lists books of account, ledgers, financial, accounting and customer information databases (including customer load data); vendor Tax records and all general and personnel records, files, invoices, customers' and suppliers' lists; operational , other distribution and performance data for the Acquired Assetsmailing lists, GIS informationprice lists, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designsreports, plans, blueprints advertising materials, catalogues, billing records, accounting information systems and as-built plans software, sales and promotional literature, manuals, customer and supplier correspondence, plats, architectural plans, drawings, specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising studies (the "Books and promotional materials, and other written, printed or electronic materialsRecords") relating to the Business, in each case, to the extent primarily related to the VA Distribution Business all cases in the Transferred Territory and in Seller’s possession any form or in the possession of any third parties within Seller’s reasonable control or influencemedium;
(k) all Permits of Sellersundry items, including Transferable Permitstelephone numbers, that relate primarily to key and lock combinations and passwords used by the VA Distribution Business Seller in the Transferred Territoryconduct of the Business;
(l) all unexpired goodwill generated by, associated with or attributable to the Business;
(m) all of Seller's rights in, to and under third-party manufacturers' warranties;
(n) the right to bill and receive payment for services performed but unbilled as of txx Xlosing;
(o) all advertising, marketing and promotional materials, creative materials and all other printed, written or electronic materials;
(p) all franchises, approvals, permits, privileges, immunities, licenses (other than Gaming Licenses and liquor licenses), orders, registrations, certificates, variances, and similar rights obtained from any Governmental Entity which are necessary to the conduct of the Business;
(q) all right, title and interest of Seller in the benefits of all insurance covering the Acquired Assets and/or the Business;
(r) all indemnities and warranties relating to the Acquired Assets;; and
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(ns) all claims, refunds, causes of action, choses in action, rights of recovery, rights of set set-off and rights of recoupment or other rights and claims of a similar nature in favor of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory tax refunds and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily insurance refunds related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory Acquired Assets.
Appears in 1 contract
Samples: Asset Purchase Agreement (Windsor Woodmont Black Hawk Resort Corp)
Acquired Assets. On The Acquired Assets shall consist of the terms following property, rights and subject to the conditions of this Agreement, at the Closing, Seller will sell, assign, convey, transfer and deliver to Buyer, and Buyer will purchase, assume and acquire from Seller, free and clear of all Encumbrances except for Permitted Encumbrances, interests:
(i) all of Seller’s right, title and interest in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective TimeTerminals, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the “Acquired Assets”):
(a) the real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Including all Owned Real Property”, and, to the extent any required Consents have been obtained for any Leased Real Property requiring such Consents, such Leased Real Property, and all leasehold improvements, plant tangible personal property, and equipment of Seller or other interests therein located at or identified to or otherwise belonging to the Terminals listed on Schedules 2.1(a), 3.9(a) and 3.9(b);
(bii) the Inventory of Seller, whether located at the Terminals or in transit thereto or therefrom;
(iii) the Vessels;
(iv) all Seller’s records relating exclusively to the Vessels, Including certificates (to the extent permitted by applicable Legal Requirement to be transferred), maintenance and repair, architectural plans and records, classification records and correspondence with classification society and U.S. Coast Guard, yard work, purchasing records, and vendor records, in whatever form, Including computer programs and data compilations;
(v) the Vehicles;
(vi) to the extent permitted by applicable Legal Requirement to be transferred and except to the extent noted on Schedule 3.10, all Permits issued by any Governmental Body held or used by Seller in connection with the ownership or operation of any of the Acquired Assets, Including the Terminals or the Vessels;
(vii) all of Seller’s Easements rights, title, and interest in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements Assigned Contracts listed on Schedule 2.1(b) (including 3.11; provided that, only with the control buildings written consent of Seller, Buyer may, prior to Closing, exclude certain Assigned Contracts after reviewing the same and the other buildings amend Schedule 3.11 accordingly, and related improvements located thereon) (collectively, the “Transferred Easements”)any such excluded Contracts shall thereafter not be subject to any provision of this Agreement for any purpose;
(cviii) all of Seller’s rights, title, and interest in the furniture and equipment used in connection with the Business and located on the Real Property;
(ix) the books and records of Seller (or copies thereof), directly relating to the Acquired Assets or the Business, Including maintenance and repair records, plans, drawings and piping diagrams relating to the Terminals; and
(x) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all rights to proceeds from Insurance Claims for damage to any of the service centers Acquired Assets arising prior to the Closing and substations in not repaired by Seller on or prior to Closing to the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset extent agreed pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory Assetsbelow.
Appears in 1 contract
Samples: Asset Purchase Agreement (Martin Midstream Partners Lp)
Acquired Assets. On Upon the terms and subject to the conditions of set forth in this Agreement, at the Closing, Seller will shall sell, assigntransfer, convey, transfer assign and deliver to the MF Buyer and the Xxxxxx Buyer, respectively, and applicable Buyer will shall purchase, acquire and assume and acquire from Seller, all of Seller’s Interests in and to the following assets, properties, rights and interests, free and clear of all Encumbrances except for (other than Permitted Encumbrances, all of Seller’s right, title and interest in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 ) (collectively, the “Acquired Assets”) (with respect to the MF Buyer, the Acquired Assets relating to the MF Interest, MF Facility and MF Site, and with respect to the Xxxxxx Buyer, the Acquired Assets relating to the Xxxxxx Interest, Xxxxxx Facility and Xxxxxx Site):
(a) the real property described on Schedule 2.1(a) (including the control buildings Sites and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”)Facilities;
(b) all of Seller’s Easements in the Transferred Territory that are primarily related those easements and other Contracts relating to the VA Distribution Business, including Sites set forth in Section 2.2(b) of the easements listed on Seller Disclosure Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred EasementsAssumed Real Property Contracts”);
(c) all of the substationsmachinery, control buildingsequipment, service centers vehicles, furniture, Inventory and other buildingspersonal property used primarily in connection with the operation of, fixtures and improvements or for consumption at, the Facilities or the Sites, including any property purchased but not yet located on at the Owned Real Property Facilities or a Transferred Easementthe Sites (collectively, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared LocationPersonal Property”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) all Permits and Environmental Permits relating to the Distribution Sites and the Facilities;
(e) Buyer’s Shared Equipmentthe Contracts set forth in Section 2.2(e) of the Seller Disclosure Schedule (collectively with the Assumed Real Property Contracts, the “Assumed Contracts”);
(f) all Inventories, but excluding those Inventories any Facility Books and Records in the possession of Seller to the extent the information therein is not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included duplicative of Facility Books and Records already in possession of Buyer as an Acquired Asset pursuant to Section 2.6(c) hereofexisting partial owner;
(g) except any and all inventory items used for the Excluded Tangible Personal PropertyBusiness, all including: consumables; lubricants, chemicals, fluids, lubricating oils, fuel oil, filters, fittings, connectors, seals, gaskets, hardware, wire and other machinery (mobile or otherwise)similar materials; maintenance, equipment (including computer shop and office equipment)supplies; replacement, spare or other parts; tools, furniture special tools or similar equipment; and furnishings similar items of movable property and other personal property thatmaterials located at or in transit to, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily at the Facilities or the Sites or used in connection with the VA Distribution Business in Facilities or the Transferred Territory Sites (the collectively, “Tangible Personal PropertyInventory”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment use and sell electricity, capacity or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that ancillary services with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h)the Facilities for the period commencing after the Effective Time;
(i) except as set forth in Section 2.3(h), all Contracts Intellectual Property related to the Sites or Facilities or used in effect connection with the Business;
(1) all Acid Rain Allowances for calendar year 2018 and subsequent years and, for calendar year 2017, a pro-rata share of Acid Rain Allowances based on the number of days within 2017 before and after Closing; and (2) to the extent that Seller’s accounts hold CSAPR Allowances for 2017 and subsequent years relating to the Facilities, all such CSAPR Allowances, which Buyer shall receive subject to the obligation to remit as of the appropriate compliance date sufficient CSAPR Allowances to cover Seller’s share of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data applicable emissions for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and aspre-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influenceClosing period;
(k) all Permits the rights which, if not for the transactions contemplated herein, would have accrued to Seller in and to any causes of Selleraction, Claims (including Transferable Permitsrights under Insurance Policies to proceeds, that relate primarily refunds or distributions thereunder paid after the Closing Date) and defenses against third parties (including indemnification and contribution) relating to and to the VA Distribution Business in extent of any Acquired Assets or Assumed Liabilities arising after the Transferred TerritoryClosing Date;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable warranties, indemnities and Unbilled Revenueguaranties made or given by manufacturers, together with all rights to enforceoverhaulers, execute on or collect the sameassemblers, refurbishers, vendors and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off service providers and rights of recoupment of Seller against other comparable third parties to the extent relating to the Assumed ObligationsFacilities, the Sites 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;
(m) except as provided in Section 2.3(e) (with respect to the period prior to the Effective Time), the PJM capacity sales listed in Section 2.2(m) of the Seller Disclosure Schedule and all PJM capacity sales entered into by Seller after the Execution Date with respect to its Interest;
(n) except as provided in Section 2.3, all other assets, rights and interests used exclusively in relation to or in connection with the Facilities; and
(o) any and all Intellectual Property described in Schedule 2.1(oclaims of Seller (and any predecessor) (for refunds or credits of any ad valorem property Taxes attributable to the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE Assets for the Transferred Territory pursuant to taxable period that includes the PJM AgreementsClosing Date; provided, including (i) all Auction Revenue Rights to which Seller is entitled however, that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to shall not include the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory Excluded Assets.
Appears in 1 contract
Acquired Assets. On the terms and subject to the conditions of this Agreement, at At the Closing, Seller will sell, assign, convey, transfer AFC shall be the beneficial owner (by virtue of its ownership of 100% of the issued and deliver to Buyer, and Buyer will purchase, assume and acquire from Seller, free and clear outstanding capital stock of AI) of all Encumbrances except for Permitted Encumbrancesof the assets, all properties, business, goodwill, rights, titles and interests of Sellerevery kind or nature owned, leased, licensed or otherwise held by either AI (including indirect and other forms of beneficial ownership) or used in the business of AI, whether tangible, intangible, real, personal or mixed and wherever located, including (without limitation) AI’s right, title and interest in in, to and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as under all of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 following (collectively, the “Acquired Assets”):
(ai) all tangible personal property, including all machinery, equipment, tools, spare parts, furniture, fixtures, vehicles, accessories, office materials, packaging and shipping materials, office equipment, computers, telephones, facsimile machines, file cabinets, artwork and drawings and other tangible personal property, together with any express or implied warranty by the real manufacturers or sellers of such tangible personal property described on Schedule 2.1(a) or any component part thereof (including to the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”extent transferable);
(bii) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Businessinventory and supplies, including the easements listed on Schedule 2.1(b) (including the control buildings finished goods, work in process and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and raw materials used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g)AI;
(hiii) subject to Section 2.5all accounts receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that correspondence with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h)thereto;
(iiv) all Contracts in effect as of the date of this Agreement that relate primarily rights existing under all contracts to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”)which AI is a party;
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(nv) all claims, deposits, prepayments, prepaid expenses, warranties, guarantees, refunds, causes of action, choses in action, rights of recovery, rights of set set-off and rights of recoupment of Seller against third parties every kind and nature (including rights to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”insurance proceeds);
(pvi) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreementsintellectual property of AI, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned any trademarks or company names used by Seller pursuant to the Power Purchase AgreementsAI;
(qvii) rights the business of AI as currently, or contemplated to serve the existing certified service territory of Seller in the portion be, conducted as a going concern and all of the Commonwealth of Virginia described in Annex A heretogoodwill associated therewith;
(rviii) the Transferring Employee Records, all permits related to the extent permitted business of AI held by LawAI;
(six) all insurance, warranty and condemnation net proceeds received after the assets deemed Closing Date with respect to be Acquired Assets pursuant damage, non-conformance of or loss to Sections 2.5 or 2.6the Purchased Assets;
(tx) all carbon credits books and renewable energy attributesrecords, including renewable energy creditsledgers, green tagscorrespondence, carbon emissions reductions lists, studies and similar attributesreports and other printed or written materials, if anyincluding, without limitation, all lists and records pertaining to the extent primarily customers, personnel, agents, suppliers, distributors and pricing, purchase and sale records, quality control records, research and development files, files and data, company manuals and other business related documents and materials, whether written, electronic or otherwise, all telephone and facsimile numbers and internet access (including email) accounts, and all information relating to the VA Distribution Business in the Transferred Territorytaxes;
(xi) all bank accounts of AI;
(xii) all servers and e-mails; and
(uxiii) the rights and obligations related to Regulatory Assetsall other assets of any kind or nature of AI.
Appears in 1 contract
Acquired Assets. On Upon the terms and subject to the conditions of set forth in this Agreement, at on the ClosingClosing Date, Seller will agrees to, or to cause the other members of the Seller Group to, sell, assign, conveytransfer, transfer convey and deliver to BuyerPurchaser or one or more of its Designated Affiliates, and Buyer will Purchaser agrees to purchase, assume acquire and accept from the members of the Seller Group, or to cause one or more of its Designated Affiliates to purchase, acquire and accept from Sellerthe members of the Seller Group, free and clear of all Encumbrances except for Liens other than Permitted EncumbrancesLiens, all of Sellerthe members of the Seller Group’s legal and beneficial right, title and interest in and to the assets used following assets, properties, rights, contracts and claims, which are owned, leased or licensed by Seller to carry out its VA Distribution Business in the Transferred Territory as members of the Effective Time, except for Seller Group on the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 Closing Date (collectively, the “Acquired Assets”):
(ai) the real property described all Owned Real Property set forth on Schedule 2.1(a5.7(i), together with the right, title and interest of the members of the Seller Group in and to all buildings, improvements, structures, facilities, fixtures and all other appurtenances thereto;
(ii) Leased Real Property of any member of the Seller Group, and all Leases entered into after the date of this Agreement and prior to the Closing Date in accordance with Section 8.2;
(iii) all inventories or raw materials, work-in-process, finished goods, parts, office and other supplies, packaging materials and other inventories of the Automotive Business to the extent reflected in Estimated Closing Working Capital, as the same may be adjusted in the Adjustment Statement (the “Inventory”);
(iv) all accounts receivable of the Automotive Business to the extent reflected in Estimated Closing Working Capital, as the same may be adjusted in the Adjustment Statement (the “Accounts Receivable”);
(v) all furniture, fixtures, plant, tools (including all Unbilled Reimbursable Tooling Inventory), machinery, equipment, parts, office and other supplies and other items of tangible personal property of the members of the Seller Group primarily related to or primarily used in the operation of the Automotive Business, whether located on site at the Owned Real Property or Leased Real Property or stored or used off site in the ordinary course of the operation of the Automotive Business (excluding the items listed on Schedule 2.2(v)) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Personal Property”);
(bvi) all of Seller’s Easements in the Transferred Territory that are primarily related to Auto Intellectual Property other than the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”)Excluded Intellectual Property;
(cvii) to the extent their transfer is permitted under applicable Laws, (A) the Permits and (B) all of such Permits obtained after the substations, control buildings, service centers date hereof and other buildings, fixtures and improvements located on prior to the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred TerritoryClosing Date;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(fviii) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for rights of members of the Excluded Tangible Personal Property, Seller Group under all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, Contracts used in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in, or directed to the operation of the Automotive Business as currently conducted as of the Closing Date, and all such Contracts entered into after the date hereof and prior to the Closing Date in accordance with Section 8.2, other than Contracts with employees of the VA Distribution Automotive Business in the who are not Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g)Employees;
(hix) subject all books of account, financial and accounting records, files (including personnel files, workers’ compensation claim files and other employee books and records pertaining to Section 2.5Transferred Employees), all rights invoices and supplier and customer lists relating to and used in, or held for use in, the operation of the Automotive Business and owned by members of the Seller as lessee under Group;
(x) any current prepaid expenses and other current assets of the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) Automotive Business to the extent relating to equipment or vehicles primarily related to reflected in Estimated Closing Working Capital, as the VA Distribution Business same may be adjusted in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h)Adjustment Statement;
(ixi) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territoryrights, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off recoveries and rights of recoupment of Seller against third parties to the extent reimbursement arising out of, relating to or otherwise in any way in respect of, the Acquired Assets or any Assumed Obligations;
Liability including all rights, guaranties, warranties, indemnities and similar rights in favor of members of the Seller Group in respect of any Acquired Asset or any Assumed Liability (obut with respect to any tax refund claim, tax payment or tax reduction or credit related thereto, the provisions of Section 9.2(i) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”shall apply);
(pxii) all rights to CRRs to which of members of the Seller is entitled as an LSE for Group under the Transferred Territory pursuant Collective Bargaining Agreements, and all Collective Bargaining Agreements entered into after the date hereof and prior to the PJM Agreements, including Closing Date in accordance with Section 8.2;
(ixiii) all Auction Revenue Rights rights of members of the Seller Group under operating leases relating to which tangible personal property of members of the Seller is entitled that are allocable Group related to or used in the Transferred Territory and operation of the Automotive Business;
(iixiv) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share rights of members of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, Seller Group under all manufacturer and/or supplier warranties except to the extent that obligations under such rights have been assigned by Seller pursuant to the Power Purchase Agreementswarranties are Excluded Liabilities;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(sxv) the assets deemed related to Employee Benefit Plans contemplated to be Acquired Assets pursuant transferred to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions assumed by Purchaser in Section 6.1 and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory6.2 of this Agreement; and
(uxvi) the all other assets, properties, rights and obligations claims of such members of the Seller Group of any kind and nature primarily related to Regulatory Assetsor primarily used in the operation of the Automotive Business not otherwise described above.
Appears in 1 contract
Acquired Assets. On Upon the terms and subject to the conditions of set forth in this Agreement, at the ClosingSeller agrees to sell, Seller will selltransfer, assign, convey, transfer convey and deliver to BuyerPurchaser, and Buyer will Purchaser agrees to purchase, assume acquire and acquire accept from Seller, free and clear of all Encumbrances except for Permitted Encumbrancesat the Closing (as defined in Section 3.1), all of Seller’s 's right, title and interest in and to the assets assets, rights and property used exclusively or primarily in or held for use by Seller to carry out its VA Distribution Business exclusively or primarily in the Transferred Territory as operation of the Effective TimePRENATE Business including, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectivelywithout limitation, the “Acquired Assets”):following:
(a) the real property described on Schedule 2.1(a) (Seller's inventory, including the control buildings and Sample Inventory (as defined in Section 2.2(b)) in existence at the other buildings and related improvements located thereonClosing Date (as defined in Section 3.1) of finished goods for sale or use primarily in the operation of the PRENATE Business (collectivelythe "Inventory", the “Owned Real Property”which term shall not include Sample Inventory);
(b) all Seller's inventory in existence at the Closing Date of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Businesspromotional materials, including Sample Inventory and medical education materials associated with the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”)PRENATE Business;
(c) all customer lists of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution PRENATE Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) intellectual property rights owned or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and otherwise used or held for use by Seller primarily in connection with the VA Distribution PRENATE Business in the Transferred Territory including: (the “Tangible Personal Property”)i) registered or [***] - Confidential Treatment Requested unregistered trademarks, providedservice marks, that with respect to vehicles logos, trade dress, trade names and trailers owned by Sellerinternet domain names (collectively, the Acquired Assets will only include "Trademarks") including those vehicles and trailers set forth on Schedule 2.1(g)1.1(e) annexed hereto, (ii) all trade secrets, inventions, know-how, processes, product specifications, designs, copyrights and formulae, whether patentable or unpatentable, and (iii) all Trademark applications;
(hA) subject to Section 2.5all right, title and interest in and under all rights contracts, agreements, open sales orders, enforceable arrangements and other commitments of Seller as lessee under related to the leases PRENATE Business, including those set forth on Schedule 2.1(h1.1(e)-1 annexed hereto and (B) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily all rights related to the VA Distribution PRENATE Business in and under the Transferred Territory; providedMultiproduct Contracts, that with respect to vehicles and trailers subject to an Equipment Lease, only including those vehicles and trailers set forth on Schedule 2.1(h);
1.1(e)-2 annexed hereto. All contracts referred to under A and B of this Section 1.1(e) shall hereinafter be collectively referred to as the "Assigned Contracts". "Multiproduct Contracts" shall mean those Assigned Contracts containing rights or obligations relating to both (i) all Contracts in effect as products which form a part of the date of this Agreement that relate primarily to the VA Distribution PRENATE Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to products which Seller is entitled that are allocable to not associated with the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase AgreementsPRENATE Business;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory Assets.
Appears in 1 contract
Samples: Asset Purchase Agreement (First Horizon Pharmaceutical Corp)
Acquired Assets. On the terms and subject Seller agrees to the conditions of this Agreementsell and, at the Closing, Seller will sell, assign, convey, transfer and deliver to Buyer, and Buyer will purchase, assume and acquire from Seller, free and clear of all Encumbrances except for Permitted EncumbrancesPurchaser, all of the personal property owned by Seller and located at or related to the Seller’s 's Business, including but not limited to the following, hereinafter referred to as the "Property":
(a) Two computers and supplies owned by Seller and on hand at the Seller's Business as of the Effective Date, including but not limited to those items set forth on the Schedule of Computers attached hereto as Exhibit A and made a part hereof by reference (collectively, the "computers").
(b) All right, title and interest of Seller in or under all contracts, agreements, instruments, certificates, permits and licenses which relate to the assets used Seller's Business, and accepted by Seller to carry out its VA Distribution Business in Purchaser, as set forth on the Transferred Territory Schedule of Contracts attached hereto as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below Exhibit B and added after the date made a part hereof pursuant to Section 2.6 by reference (collectively, the “Acquired Assets”):"Contracts").
(ac) All customer and subscriber lists as set forth on the real property described on Schedule 2.1(a) (including the control buildings of Customer and the other buildings Subscriber Lists, attached hereto as Exhibit C and related improvements located thereon) made a part hereof by reference (collectively, the “Owned Real Property”"Customer and Supplier Lists");.
(bd) all of Seller’s Easements in the Transferred Territory that are primarily All business records, correspondence, files and other related books and records (or copies thereof certified by Seller as true) related to the VA Distribution BusinessSeller's Business or in any way related thereto, including summaries and descriptions of which are set forth on the easements listed on Schedule 2.1(b) (including the control buildings of Books and the other buildings Records, attached hereto as Exhibit D and related improvements located thereon) made a part hereof by reference (collectively, the “Transferred Easements”"Books and Records");
(c) . Purchaser agrees to store all of the substations, control buildings, service centers above and other buildings, fixtures and improvements located on the Owned Real Property or make them available to Seller for a Transferred Easement, unless such substation, building, fixture or improvement is period of five (i5) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;years.
(e) Buyer’s Shared Equipment;All Internet domain names, trade names, marks and trademarks used by Seller in the operation of the Seller's Business, which are set forth on the Schedule of Trade Names and Product Names, attached hereto as Exhibit E and made a part hereof by reference.
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer All intangible property and office equipment), tools, furniture and furnishings and other personal intangible property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent whatever kind or nature relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as any of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property above described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory Assetsproperties.
Appears in 1 contract
Samples: Asset Purchase Agreement (Integrated Management Information, Inc.)
Acquired Assets. On the terms and subject to the terms and conditions of this Agreement, at the Closing, Seller will shall sell, assign, transfer, convey, transfer and deliver to Buyer, and Buyer will purchase, assume and acquire from Seller, free and clear of all Encumbrances except for Permitted EncumbrancesLiens, and Buyer shall purchase, acquire, and accept from Seller, all of Seller’s right, title title, and interest in in, to and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as under all of the Effective Timeassets, except for properties and rights of Seller of every type and description, real, personal or mixed, tangible and intangible, wherever located and whether or not reflected on the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 books of Seller (collectively, the “Acquired Assets”), including, without limitation, the following, but excluding the Excluded Assets (as defined in Section 1.2):
(a) the real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”)Inventory;
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”)Accounts Receivable;
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred TerritoryPrepaid Expenses;
(d) the Distribution FacilitiesTangible Personal Property;
(e) Buyer’s Shared Equipmentall Contracts and Work Orders, other than Excluded Contracts (collectively, the “Assigned Contracts”);
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereofVehicles;
(g) except for the Excluded Tangible Personal all Seller Intellectual Property, all other machinery (mobile or otherwise)than Excluded Seller Intellectual Property, equipment (including computer and office equipment)without limitation the Proprietary Software, tools, furniture and furnishings the goodwill of Seller and other personal property thatintangible assets including, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Sellerwithout limitation, the Acquired Assets will only include those vehicles corporate name “EthoStream” and trailers set forth on Schedule 2.1(g)all derivatives thereof;
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles Books and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h)Records;
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”)Permits;
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, choses in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claimsaction, causes of action, claims and demands of Seller (whether known or unknown, matured or unmatured, accrued or contingent), including rights to returned or repossessed materials and goods and rights as an unpaid vendor, rights of recovery, rights of set warranty and indemnity, rights of set-off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily other than those solely related to the VA Distribution Business in the Transferred TerritoryExcluded Assets); and
(uk) the other assets, properties and rights and obligations related to Regulatory Assetsof Shareholder set forth on Schedule 1.1(k).
Appears in 1 contract
Acquired Assets. On the terms and subject to the conditions of this Agreement, at the Initial Closing, Seller will PC Buyer shall purchase, acquire and accept from CFC IPA, and CFC IPA shall sell, convey, assign, convey, transfer and deliver to PC Buyer, all assets, properties, rights, titles and Buyer will purchaseinterests of CFC IPA, assume whether tangible or intangible, real or personal and acquire from Seller, free and clear of all Encumbrances except for Permitted Encumbrances, all of Seller’s right, title and interest in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2wherever located, including the assets more specifically described below IPA Business and added after the date hereof pursuant to Section 2.6 Enumerated Assets, but excluding the Excluded Assets (collectively, the “Acquired Assets”):
(a) the real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”);
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, free and clear of all Liens, other than Permitted Liens). Notwithstanding the foregoing, CFC IPA may retain copies of any Contracts, documents, correspondence or records which are not classified as inventory under GAAP required to be retained pursuant to any Applicable Law or are subject to the attorney-client privilege, for financial reporting purposes, for Tax purposes, for legal defense or prosecution purposes or otherwise in connection with the Excluded Liabilities or the Excluded Assets. The Parties acknowledge and agree that are owned by Seller and used or held for use by Seller primarily CFC IPA shall have the right, in its sole discretion, to assign its right to receive fifty percent (50%) of the VA Distribution Business in the Transferred Territory Buyer Parent Shares to AMFIT, LLC, a Delaware limited liability company (the “Tangible Personal PropertyAMFIT”), providedand the remaining fifty percent (50%) to MMFIT, that LLC, a Delaware limited liability company (“MMFIT,” and together with respect to vehicles and trailers owned by SellerAMFIT, the Acquired Assets will only include those vehicles “Buyer Parent Shares Transferees”) pursuant to assignment agreements each substantially in the form attached as Exhibit E hereto and trailers set forth on Schedule 2.1(g);
(h) that, subject to the immediately succeeding sentence and compliance with Section 2.512.4 and the execution of such assignment agreements, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) Buyer Parent Shares shall be issued to such parties. Prior to the extent relating to equipment or vehicles primarily related Initial Closing, in the event that CFC IPA assigns its rights pursuant to the VA Distribution Business in preceding sentence, CFC IPA shall cause to be delivered to the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
Buyer Parties (i) all Contracts joinders to this Agreement each substantially in effect the form attached as Exhibit F hereto and executed by each of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory Buyer Parent Share Transferees and (ii) all Financial Transmission Rights to which Seller is entitled a legal opinion of counsel substantially in the form attached as Exhibit G hereto that are allocable the transfers of the Buyer Parent Shares by CFC IPA to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller Buyer Parent Share Transferees via assignments referenced in the portion of preceding sentence are exempt from registration under the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory AssetsSecurities Act.
Appears in 1 contract
Samples: Asset and Equity Purchase Agreement (Apollo Medical Holdings, Inc.)
Acquired Assets. On Subject to and upon the terms and subject to the conditions of this Agreement, at the closing of the transactions contemplated by this Agreement (the "Closing"), the Seller will shall sell, assigntransfer, convey, transfer assign and deliver to the Buyer, and the Buyer will purchase, assume and acquire shall purchase from the Seller, free the following properties, assets and clear other claims, rights and interests owned by the Seller (collectively, the "Acquired Assets"):
(i) all rights of the Seller in, to and under the contracts, leases, licenses and agreements identified on Schedule 1.1(a)(i) (collectively, the "Required Contracts");
(ii) the machinery and equipment owned by the Seller on the Closing Date, used by the Seller in the Division and identified in Schedule 1.1(a)(ii) (the "Fixed Assets");
(iii) all Encumbrances except books, records, technical and procedural manuals related to the Acquired Assets;
(iv) all prepaid expenses (but not including any deferred income taxes) of the Seller relating primarily to the Operations for Permitted Encumbrances, periods on or after the Closing Date;
(v) all of the Seller’s 's right, title and interest in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory service names, trade names or any derivation thereof, service marks, service xxxx registrations, trademarks, trademark registrations, and applications for service xxxx or trademark registrations, and other intellectual property, as set forth on Schedule 1.1(a)(v) and all of the Effective Time, except for Seller's trade secrets and know-how primarily related to the assets expressly excluded below Acquired Assets or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 Operations (collectively, the “Acquired Assets”):
(a) the real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real "Intellectual Property”");
(bvi) all of Seller’s Easements in the Transferred Territory that are confidential and proprietary information relating primarily related to the VA Distribution BusinessOperations, including the easements listed on Schedule 2.1(b) (including the control buildings including, without limitation, customer lists, supplier lists, sales, billing and the other buildings collection records, data collections, business plans, marketing plans and related improvements located thereon) (collectively, the “Transferred Easements”)correspondence;
(cvii) all of municipal, state and federal franchises, permits, licenses, agreements, waivers and authorizations held or used by the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”)connection with, provided, that with respect to vehicles and trailers owned by Selleror required for, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each caseOperations, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territorytransferable; and
(uviii) the rights and obligations related goodwill of the Seller relating to Regulatory Assetsthe Operations.
Appears in 1 contract
Acquired Assets. On the terms and subject to the conditions of this Agreement, at the Closing, Seller will Sellers agree to sell, assign, convey, transfer and deliver to BuyerPurchaser, and Buyer will purchasePxxxxxxxx agrees to purchase from Sellers, assume the following assets of Sellers (collectively, the “Acquired Assets”), at the Closing and acquire from Seller, free and clear of all Encumbrances except for Permitted Encumbrances, Liens. The Acquired Assets include all of each Seller’s right, title and interest in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the “Acquired Assets”):following:
(a) the real The tangible personal property described set forth on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”);
(b) all The Contracts set forth on Schedule 2.1(b)(the “Acquired Contracts”) (it being understood and agreed that between the execution of Seller’s Easements this Agreement and the Closing, Purchaser has the right, in the Transferred Territory its sole discretion, to inform Sellers that are primarily related it no longer desires to the VA Distribution Business, including the easements take assignment of one or more Contracts listed on Schedule 2.1(b), in which case such Contract(s) (including shall no longer be “Acquired Contracts” hereunder). If the control buildings and assignment of any Acquired Contract requires the consent of the other buildings parties to such Acquired Contract (other than any Seller), this Agreement does not constitute an agreement to assign such Acquired Contract if an attempted assignment would constitute a breach thereof, but Sellers shall use their best efforts to obtain the written consent of the other parties to such assignment; and related improvements located thereonfailing such consent, at Purchaser’s election, Sellers shall continue to execute any such Acquired Contract upon the direction and for the risk and benefit of Purchaser;
(c) All Intellectual Property, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions;
(d) All franchises, approvals, permits, licenses, orders, registrations, certificates (including, for the avoidance of doubt, all Underwriters Laboratories certification marks and Electrical Testing Laboratories certification marks), variances, and similar rights obtained from Governmental Authorities or other Persons (collectively, the “Transferred EasementsPermits”);
(c) all of , including, but not limited to, the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included Permits set forth on Schedule 2.2(a2.1(d); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all InventoriesAll books, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Propertyrecords, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studiescorrespondence, reportslists, plats, architectural plans, drawings, specifications, creative materials, advertising and promotional materials, studies, reports, and other written, printed or electronic written materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(kf) all Permits of Seller, including Transferable Permits, that relate primarily All Company-branded inventory with respect to the VA Distribution Business model numbers listed on Schedule 2.1(f) (collectively, “Eligible Inventory”), it being understood and agreed that (i) Eligible Inventory includes but is not limited to inventory in transit from suppliers, (ii) Eligible Inventory not in transit from suppliers is limited to inventory physically located at Seller’s Owings Mills, MD and Long Beach, CA warehouse sites on the date of measure proscribed in Section 3.1(c)
(iii) Schedule 2.1(f) shall include the per unit cost for each model number of Eligible Inventory and (iv) in the Transferred Territoryevent that Eligible Inventory consisting of UL 217 8th Edition smoke alarms and UL 217 8th Edition combination smoke/carbon monoxide alarms is lower than $2,700,000.00, Eligible Inventory may include a carbon monoxide alarm inventory of up to $500,000.00 in aggregate amount (excluding combo alarms), calculated in accordance with all other items of Eligible Inventory as set forth in Section 3.1(c). To the extent that Seller’s total carbon monoxide alarm inventory is in excess of $500,000.00, Purchaser will have the right to determine which specific carbon monoxide alarm units will be included as Eligible Inventory;
(lg) all unexpired warranties relating to the Acquired AssetsAll customer accounts;
(mh) The names “Universal Security Instruments” and “USI Electric” and all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the samederivations thereof, and all rights relating to other names used in connection with the Customer Deposits (but not the cash related to such deposits);
(n) Business and all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territoryderivations thereof; and
(ui) the rights and obligations related to Regulatory AssetsAll goodwill.
Appears in 1 contract
Samples: Asset Purchase Agreement (Universal Security Instruments Inc)
Acquired Assets. On the terms and subject to the conditions of this Agreement, at the Closing, Seller will shall sell, assign, convey, transfer and deliver to BuyerPurchaser, and Buyer Purchaser will purchase, assume acquire and acquire accept from Seller, free and clear of all Encumbrances except for Permitted Encumbrances, all of Seller’s right, title and interest in and to the assets used by Seller to carry out its VA Distribution Business following assets, properties, rights, contracts and claims of Seller, in the Transferred Territory as each case free and clear of all Encumbrances other than Permitted Encumbrances, of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 Business (collectively, with the Kitchen Electrics Inventory, the “Acquired Assets”):
(a) All inventories of finished goods and packaging materials that are located on the real property described on Schedule 2.1(a) (including Leased Real Property as of the control buildings and the other buildings and related improvements located thereon) Closing (collectively, the “Owned Real PropertyInventory”);
(b) All equipment, furniture, furnishings, fixtures, tools and other tangible personal property, and all of Seller’s Easements communications equipment, including personal laptop computers and cellular phones, in the each case, which may be assigned to a Transferred Territory Employee or that are primarily related to located on the VA Distribution Business, including Leased Real Property as of the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) Closing (collectively, the “Transferred EasementsEquipment”);
(c) all The cash from customers of the substations, control buildings, service centers and other buildings, fixtures and improvements Business located on at the Owned Leased Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all as of the service centers Closing and substations in all checks from customers of the Transferred Territory, whether Business located on Owned at the Leased Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all as of the Shared Locations in Closing (with such checks endorsed by Seller to Purchaser) (collectively, the Transferred Territory“Acquired Cash”);
(d) All of Seller’s right, title and interest in the Distribution Facilities“Chef’s Outlet” trade name;
(e) Buyer’s Shared Equipment;
All contracts, agreements, commitments, purchase orders, leases, licenses and other legally binding arrangements, whether written or oral (fcollectively, “Contracts”), but only to the extent such Contracts are (i) all Inventorieslisted on Schedule 4.8 (except to the extent that a Contract or part of a Contract is identified as an Excluded Asset in Section 1.2) or (ii) entered into in the ordinary course of business and related exclusively to the Business, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by any Contracts between Seller and used or held for use by any Affiliate of Seller primarily in the VA Distribution Business in the Transferred Territory (such Contracts that constitute Acquired Assets collectively referred to as the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(jf) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, All books and records; meter reading and service , including business records, research material, tangible data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studiespersonnel records with respect to Transferred Employees, reportsinvoices, creative materialscustomer lists, advertising vendor lists, service provider lists, sales and promotional materialsliterature, catalogs and other writtenadvertising material used for the marketing of the products of the Business, printed or electronic materials, in each case, but only to the extent primarily related exclusively to the VA Distribution Business, but excluding Tax Returns and related notes, worksheets, files and documents relating thereto (collectively, “Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual PropertyRecords”);
(pg) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant All rights, causes of actions, claims and credits to the PJM Agreementsextent related exclusively to any Acquired Asset or any Assumed Liability, including all guarantees, warranties, indemnities and similar rights in favor of Seller in respect of any Acquired Asset or any Assumed Liability;
(h) All transferable Permits that are (i) all Auction Revenue Rights to which Seller is entitled that are allocable exclusively related to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share operation of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase AgreementsBusiness;
(qi) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A heretoThe application systems and software set forth on Schedule 1.1(i);
(rj) All other tangible assets of the Transferring Employee RecordsBusiness located at the Leased Real Property as of the Closing, except (A) those assets that are owned by the owner of the Leased Real Property, (B) Excluded Assets and (C) assets that have been disposed of in the ordinary course of operation of the Business since the Statement Date. After the Closing Date, Seller shall take all action (or shall cause its Affiliates to take all actions) reasonably requested by Purchaser to effect the extent permitted by Law;
(s) provisions of this Section 1.1, including the assets deemed to be prompt delivery of any Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory Assetsthat are inadvertently not transferred at Closing.
Appears in 1 contract
Acquired Assets. On Upon the terms and subject to the conditions of set forth in this Agreement, at the Closing, Closing the Seller will shall sell, assign, convey, transfer and deliver to Buyerthe Purchaser, and Buyer will the Purchaser shall purchase, assume all properties, assets, rights and acquire from Sellerinterests of every kind and nature, free whether tangible or intangible, and clear of all Encumbrances except for Permitted Encumbranceswherever located and by whomever possessed, all of Seller’s right, title owned by the Seller and interest in and related to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective TimeClosing Date, except for the assets expressly excluded below or excluded as set forth in Section 2.2, including the assets more specifically described 2.1(b) below and added after the date hereof pursuant to Section 2.6 (collectively, the “"Acquired Assets”):
(a) the real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”);
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise"), equipment including, without limitation (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in Business):
(i) all Proprietary Rights, along with all income, royalties, damages and payments due or payable as of the Transferred Territory Closing or thereafter, including, without limitation, damages and in Seller’s possession payments for past, present or in future infringements or misappropriations thereof, the possession of right to xxx and recover for past infringements or misappropriations thereof and any third parties within Seller’s reasonable control and all corresponding rights that, now or influencehereafter, may be secured throughout the world;
(kii) all Permits of the Seller's rights existing under leases, including Transferable Permitscontracts, that relate primarily to licenses, permits, distribution arrangements, sales and purchase agreements, other agreements and business arrangements, including, without limitation, all contracts and agreements described on the VA Distribution Business in the Transferred TerritoryContracts Schedule attached hereto;
(liii) all unexpired warranties relating to real property owned or leased by the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the sameSeller, and all plants, buildings and other improvements located on such owned or leased property, and all easements, licenses, rights relating to the Customer Deposits (but not the cash related of way, permits and all appurtenances to such depositsowned or leased property, including, without limitation, all appurtenant rights in and to public streets, whether or not vacated (collectively, the "Real Property");
(niv) all leasehold improvements and all machinery, equipment (including all transportation and office equipment), fixtures, trade fixtures, tools, dyes and furniture owned by the Seller wherever located, including, without limitation, all such items which are located in any building, warehouse, office or other space leased, owned or occupied by the Seller or used in connection with the Real Property;
(v) all rental equipment of any kind, wherever located, rented by the Seller to or from any Person;
(vi) all inventories of work in process, semi-finished and finished goods, stores, replacement and spare parts, packaging materials, operating supplies, and fuels;
(vii) all office supplies, production supplies, spare parts, other miscellaneous supplies, and other tangible property of any kind wherever located, including, without limitation, all property of any kind located in any building, office or other space leased, owned or occupied by the Seller or in any warehouse where any of the Seller's properties and assets may be situated;
(viii) all prepayments and prepaid expenses;
(ix) except as specified in Section 2.1(b) below, all of the Seller's claims, causes of action, rights of recoverychoses in action, rights of set off recovery and rights of recoupment set-off of Seller against third parties to the extent relating to the Assumed Obligationsany kind;
(ox) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”)right to receive and retain mail and other communications;
(pxi) rights the right to CRRs to which Seller is entitled xxxx and receive payment for products shipped or delivered and services performed but unbilled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase AgreementsClosing;
(qxii) rights all lists, records and other information pertaining to serve the existing certified service territory accounts, personnel and referral sources, all lists and records pertaining to suppliers and customers, and all books, ledgers, files and business records of Seller every kind, whether evidenced in the portion of the Commonwealth of Virginia described in Annex A heretowriting, electronically (including, without limitation, by computer) or otherwise;
(rxiii) the Transferring Employee Recordsall advertising, to the extent permitted by Lawmarketing and promotional materials and all other printed or written materials;
(sxiv) all permits, licenses, certifications and approvals from all permitting, licensing, accrediting and certifying agencies, and the assets deemed rights to be Acquired Assets pursuant to Sections 2.5 or 2.6all data and records held by such permitting, licensing and certifying agencies;
(txv) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to telephone numbers (e.g. "800" numbers) used by the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory Assets.Seller;
Appears in 1 contract
Acquired Assets. On the terms and subject to the conditions of this Agreement, at the Closing, Seller will sell, assign, convey, transfer and deliver to Buyer, and Buyer will purchase, assume and acquire from Seller, free and clear of The Acquired Assets shall include all Encumbrances except for Permitted Encumbrances, all of Seller’s right, title and interest of Seller as of the Closing Date in and to the assets used by Seller to carry out its VA Distribution Business and useful in the Transferred Territory as of the Effective TimeBusiness, wherever located, owned, used or held by Seller, except for the assets as otherwise expressly excluded below or excluded identified in Section 2.21.3 as an Excluded Asset, including the assets more specifically described below following, but only to the extent used and added after useful in the date hereof pursuant to Section 2.6 (collectively, the “Acquired Assets”):Business:
(a) the real property described all of Seller's cash and cash equivalents as set forth on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”1.2(a);
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business's accounts, including the easements listed on Schedule 2.1(b) (including the control buildings notes and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”)receivables;
(c) all of the substationsSeller's raw materials and supplies, control buildingsmanufactured and purchased parts, service centers work-in-process, finished goods and other buildingsitems of inventory, fixtures and improvements located on the Owned Real Property or a Transferred Easementincluding, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Propertywithout limitation, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, such inventory which may be in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession transit or in the possession of any third parties within Seller’s reasonable control or influenceparty;
(kd) all Permits of Seller's machinery, including Transferable Permitsequipment, that relate primarily to the VA Distribution Business in the Transferred Territoryfurniture and furnishings, office equipment, office machines, computer hardware and peripheral equipment, goods, vehicles, leasehold improvements, and other tangible personal property;
(le) all unexpired warranties relating of Seller's Proprietary Rights, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, including, without limitation, all remedies for infringements thereof and rights to protection of interests therein under the Acquired Assetslaws of all jurisdictions;
(mf) all Accounts Receivable and Unbilled Revenue, together with all of Seller's rights to enforceand interests in computer software owned by or licensed to Seller;
(g) all of Seller's agreements, execute contracts, purchase and sales orders and other similar arrangements, including, without limitation, those (i) set forth on or collect the same, Schedule 2.1(n) and all rights relating (ii) not set forth on Schedule 2.1(n) due solely to the Customer Deposits specific dollar threshold contained in Section 2.1(n), in each case to the extent transferable (the "Assumed Agreements"), but not the cash related to such depositsincluding agreements described in Sections 1.3(b), 1.3(c), 1.3(d) and 2.1(n)(i);
(nh) all of Seller's prepayments and deposits to the extent any benefit therefrom inures to Purchaser after the Closing;
(i) all of Seller's claims, causes of actionrefunds, rights of recovery, rights of set off and rights of recoupment of Seller against third parties any kind other than those described in Section 1.3(e);
(j) all of Seller's franchises, approvals, permits, licenses, orders, registrations, certificates, variances, grandfathered practices and similar rights obtained from Governmental Authorities, to the extent transferable to Purchaser;
(k) all of Seller's rights to receive mail and other communications addressed to Seller and relating to the Assumed ObligationsBusiness (including, without limitation, mail and communications from customers, suppliers, distributors, agents and others and payments with respect to the Acquired Assets);
(l) all of Seller's books, records (including maintenance records, product tracing records, quality assurance records and quality control records, but not including corporate records listed in Section 1.3(c)), ledgers, files, documents, surveys, plans, order files, catalogs, technical information, pricing sheets, instructions and manuals, employee handbooks, correspondence, customer and supplier lists, drawings, specifications, display, advertising and promotional materials, studies, reports, data and other printed, written or electronically-stored materials of whatever nature;
(m) all of Seller's rights with respect to legal actions and causes of action relating to the Business or the Acquired Assets;
(n) all of Seller's right to use the telephone numbers, telecopier numbers, internet website domain names and e-mail addresses used by or for Seller in connection with the Business, which items are set forth on Schedule 1.2(n), attached hereto; and
(o) all Intellectual Property described other property owned by Seller or in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled has an interest as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller Closing Date which is used or useful in the portion Business and is not an Excluded Asset. The purchase and sale of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant is sometimes hereinafter referred to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to as the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory Assets"Asset Purchase."
Appears in 1 contract
Acquired Assets. On Subject to the terms and subject to the conditions of set forth in this Agreement, at the ClosingSeller hereby sells, Seller will sellconveys, assignassigns, convey, transfer transfers and deliver delivers to Buyer, and Buyer will purchasehereby accepts, assume purchases, acquires and acquire from Sellertakes assignment and delivery of, free and clear of all Encumbrances (except for Permitted Encumbrances), all right, title and interest in, to and under all of the assets of Seller used, or held for use, in the Business, wherever located, and whether or not reflected on the books of Seller, excepting only the Excluded Assets (collectively, the “Acquired Assets”), including, without limitation, all of Seller’s right, title and interest in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the “Acquired Assets”):following:
(a) all Intellectual Property owned by, or licensed to, or used in the real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectivelyBusiness of, the “Owned Real Property”)Seller;
(b) all of Seller’s Easements furniture, fixtures, equipment, machinery, computers, vehicles and other tangible personal property used or useable in the Transferred Territory that are primarily related to operation of the VA Distribution Business, including the easements Business as listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of confidential information (including electronic information), operational data, marketing information, sales records, customer lists, customer files (including customer credit and collection information), historical and financial records and files relating to the substationsBusiness (including, control buildingswithout limitation, service centers all files, documents and other buildings, fixtures and improvements located on correspondence relating to the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business Duke Agreements and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(arelationship with Duke); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) all rights under the Distribution FacilitiesContracts;
(e) Buyer’s Shared Equipmentto the extent legally transferable, all permits, licenses, consents, approvals, certificates, variances or other authorizations required in connection with the operation of the Business under any Law or Contract (the “Permits”);
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereofprepaid expenses and deposits;
(g) except for the Excluded Tangible Personal Propertyall warranties, all other machinery (mobile or otherwise)claims, equipment (including computer and office equipment)causes of action, toolschoses in action, furniture and furnishings covenants and other personal property thatsimilar claims and interests, in each casewhether known or unknown, are not classified as inventory under GAAP and that are owned matured or unmatured, accrued or contingent, by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any against third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(mh) all Accounts Receivable and Unbilled Revenuegoodwill related to, together arising from or used in connection with the Business, including all rights to enforceuse the name “Global Appliance Technologies” and any derivatives thereof, execute on or collect in connection with the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits)Business;
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory records and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreementsdocuments in any medium, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreementsincluding without limitation research files and computer files;
(qj) rights to serve the existing certified service territory any other tangible or intangible personal property of Seller in the portion as of the Commonwealth of Virginia described in Annex A hereto;
(r) Closing Date that is not an Excluded Asset and that is used in, or arises from, the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred TerritoryBusiness; and
(uk) the rights and obligations related to Regulatory Assetsany other asset or contract listed on Schedule 2.1(k).
Appears in 1 contract
Samples: Asset Purchase Agreement (Turbochef Technologies Inc)
Acquired Assets. On Upon the terms and subject to the conditions of this Agreement, at the Closing, Seller will sell, assign, convey, transfer and deliver hereby Transfers to Buyer, and Buyer will purchase, assume hereby purchases and acquire accepts from Seller, free and clear of all Encumbrances except for Permitted Encumbrances, all of Seller’s rightrights, title and interest interests of Seller in and to all of the assets used by Seller to carry out its VA Distribution Business in of Seller, other than the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 Excluded Assets (collectively, the “Acquired Assets”):), in each case free and clear of all Encumbrances, other than Permitted Encumbrances, including, but not limited to the following:
(a) the real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”)all Acquired A/R;
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”)Acquired Bank Accounts;
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred TerritoryAcquired Cash;
(d) the Distribution Facilitiesall Acquired Contracts;
(e) Buyer’s Shared Equipmentall Acquired Inventory;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereofBooks and Records;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g)Permits;
(h) subject to Section 2.5, all rights of Seller Seller’s goodwill as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h)a going concern;
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territoryfurniture, including operating agreementsequipment, franchise agreementsmachinery, customer contractstools, electrical service agreementsdies, interconnect agreementsmolds, interchange agreementsproduction supplies and other supplies and all other tangible personal property, borderline agreements(other than inventory) owned by Seller, encroachment agreements, pole-attachment agreements, joint-use agreements, and including if any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred ContractsAcquired Tangible Personal Property”);
(j) any and all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business occurrence based insurance policies in the Transferred Territory name of Seller, along with all benefits and in Seller’s possession or in proceeds thereunder, other than the possession of any third parties within Seller’s reasonable control or influenceExcluded Insurance Policies;
(k) all Permits of Sellerinsurance proceeds received after the date hereof with respect to damage, including Transferable Permitsnon-conformance of, that relate primarily or loss to an Acquired Asset or with respect to an Acquired Asset or an Assumed Liability, and to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenueextent transferable, together with all rights to enforce, execute on or collect the same, and all rights relating assert claims with respect to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of any insurance policies maintained by Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory Assets.an Acquired Asset or an Assumed Liability;
Appears in 1 contract
Acquired Assets. On the terms and subject The Seller agrees to the conditions of this Agreementsell and, at the Closing, Seller will sell, assign, convey, transfer and deliver to Buyer, and the Buyer will purchase, assume and acquire from Seller, free and clear of all Encumbrances except for Permitted Encumbrances, all of Seller’s the improvements and personal property owned by the Seller and located on the Real Property, including but not limited to the following, hereinafter referred to as the "Purchased Assets":
a. All right, title and interest of the Seller in and to the improvements located on the Real Property, including but not limited to, the Store located thereon, subject to all rights of the Lessor to such assets used in accordance with the Lease and the Assignment and Assumption Agreement.
b. All furniture, fixtures, appliances, equipment, computerized cash registers, and supplies owned by the Seller to carry out its VA Distribution Business in and on hand at the Transferred Territory Store as of the Effective Timedate hereof, except for all as set forth on the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below Schedule of Equipment attached hereto as Exhibit B and added after the date made a part hereof pursuant to Section 2.6 by reference (collectively, the “Acquired Assets”):"Equipment");
(a) c. All inventory located at the real property described Store on the date of closing and which shall be listed as the Schedule 2.1(a) (including of Inventory at the control buildings time the inventory is taken and the other buildings attached hereto as Exhibit C and related improvements located thereon) made a part hereof (collectively, the “Owned Real Property”"Inventory");
(b) d. All right, title and interest of the Seller in or under the Lease and Assignment and Assumption Agreement, a copy of which is attached as Exhibit D and made a part hereof; and
e. All right, title and interest of the Seller in or under all of Seller’s Easements in the Transferred Territory that are primarily related contracts, agreements, instruments, certificates, permits and licenses which relate to the VA Distribution BusinessEquipment, including Inventory or Store, as set forth on the easements listed on Schedule 2.1(b) (including the control buildings of Contracts attached hereto as Exhibit E and the other buildings and related improvements located thereon) made a part hereof by reference (collectively, the “Transferred Easements”"Contracts");
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory Assets.
Appears in 1 contract
Acquired Assets. On the terms and subject to the conditions of this Agreement, at the Closing, Seller will sell, assign, convey, transfer and deliver sell to Buyer, and Buyer will purchase, assume and acquire purchase from Seller, free and clear of all Encumbrances except for Permitted Encumbrancesat Closing (as defined in Section 9.1 herein), all of Seller’s rightrights, title and interest interests in and to the following assets and properties used by Seller to carry out its VA Distribution Business in the Transferred Territory as operation of or otherwise in connection with the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2Auction Businesses, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 goodwill of such Businesses (collectively, the “"Acquired Assets”"):
(a1) the real trade name "Xxxxxx and Xxxxxx" and any variation thereof, including, but not limited to, the trade names, "Auctions by Xxxxxx and Xxxxxx", "Xxxxxx and Xxxxxx Galleries, Inc.", "Xxxxxx and Xxxxxx Research, Inc.", and all intellectual property described rights and logos to the name "Xxxxxx and Xxxxxx" owned by Seller as set forth on Schedule 2.1(a2.1(1).
(2) the trade name "Kingswood Coin Auctions" and any variation thereof, and all intellectual property rights and logos to the name "Kingswood Coin Auctions" owned by Seller as set forth on Schedule 2.1(2).
(3) the trade name "Superior Sports Auctions" and any variation thereof, and all intellectual property rights and logos to the name "Superior Sports Auctions" owned by Seller as set forth on Schedule 2.1(3).
(4) all post office box addresses and access and the following telephone numbers used in connection with the conduct of the Auction Businesses, which includes: (000) 000-0000, (000) 000-0000 and (000) 000-0000, and Buyer’s right to retain (at Buyer’s expense following the Closing) placement in any directory or advertising associated with such telephone numbers and names of the Auction Businesses, and as set forth on Schedule 2.1(4).
(5) The rights to have and to use, on the terms and conditions set forth in the Information License Agreement, a copy of which is attached hereto as Exhibit 2.1(5) (the "Information License"), the identities (including name, address, phone number, email address and other contact information), in a Microsoft SQL Server Database format or printed format, of: (i) the control buildings Auction Business Customers, who are identified on Schedule 2.1(5)(A) hereto (the "Auction Business Customer List"); (ii) the Auction Business Consignors, who are identified on Schedule 2.1(5)(B) hereto (the "Auction Business Consignor List"); (iii) the Auction Businesses Vendors, who are identified on Schedule 2.1(5)(C) hereto (the "Auction Business Vendor List").
(6) all domain names and web site assets owned by Seller and used exclusively in the other buildings conduct of the Auction Businesses, including, without limitation, which are listed on Schedule 2.1(6) hereto (the "Auction Business Website Assets").
(7) a fully paid non-exclusive, non-transferable license entitling Buyer to use, after the Closing, the software programs developed and owned by and proprietary to Seller and used in the conduct of the Auction Businesses, which includes any proprietary software programs used in conjunction with the operation of any of the Auction Business web sites located at the URLs identified in Schedule 2.1(6) hereto, and any related technical manuals and written instructions that were developed or authored by Seller, its employees or otherwise acquired and owned by Seller (collectively the "Proprietary Software"), which consists of all of the software programs identified as "proprietary software" on Schedule 2.1(7) and related improvements located thereontechnical manuals and written instructions.
(8) all copyrights held by Seller for numismatics books, subject to the retention by Seller of a perpetual royalty free, non-transferable license entitling Seller to copy and insert any or all of such copyrighted material, in whole or in part, into the Seller’s web sites for purposes of providing educational and other information to customers and clients of Seller’s Retained Businesses (except that Seller may not use any such copyrighted material in connection with Seller’s ownership or operation of DHRC), provided , however , that this license shall not grant Seller any ownership or other rights in or to any of such copyrighted materials, and provided, further, however, that notwithstanding the restriction on transferability of such license, Seller shall be entitled to transfer such license to any Person to which it may sell or transfer any of the Seller Retained Businesses (whether such sale or transfer is effectuated by a sale of assets, a sale of shares or a merger or other reorganization); and Seller’s entire inventory of (i) books offered for sale by BaM, as set forth on Schedule 2.1(8), and (ii) reference books, guides and catalogues identified set forth in Schedule 2.1(8) hereto, which consist of reference books, guides and catalogues used by one or more of the Auction Businesses to catalogue Collectible Coins and Sports Memorabilia (collectively, the “Owned Real Property”"Coin and Collectible Library");.
(b9) The Auction Business Records (as defined above), whether created by Seller or acquired from any third party, whether in electronic form or hard copy, subject to the right of Seller to retain copies of such Auction Business Records in electronic form or otherwise, as are reasonably necessary for the purpose of defending against or otherwise relevant to, any claims by or against Seller or for any reporting requirements of Seller provided such purposes of or use by Seller are approved by Buyer, which approval shall not be unreasonably withheld or delayed by Buyer and which approval shall be deemed given if Seller has made a written request for copies of any such Auction Business Records and Buyer has failed to notify Seller of its disapproval within ten (10) days thereof.
(10) all of Seller’s Easements in rights arising from and after the Transferred Territory that are primarily related Closing under the Contracts relating to the VA Distribution Businessconduct of the Auction Businesses which Buyer has agreed to assume, including a list of which Contracts is set forth on Schedule 2.1(10) hereto (the easements "Assumed Contracts"), and which include, without limitation, (i) all contractual rights of Seller to hold auctions at contracted venues and to use trade show booths, and the advertising agreements, listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”2.1(10) and (ii) included on the Settlement and Release Agreement dated December 5, 2003, entered into between Seller and Q. Xxxxx Xxxxxx ("Xxxxxx"), and the New Confidentiality Agreement dated December 23, 2003, also between Seller and Xxxxxx relating to the BaM Auction Business (collectively the "Xxxxxx Agreements"), and (iii) the Settlement and Release Agreement dated December 17, 2003, entered into between Seller and Xxxxxxxxx Xxxxxxxx ("Xxxxxxxx"), and the Confidentiality Agreement dated December 17, 2003, between Seller and Xxxxxxxx relating to the BaM Auction Business (collectively, the "Xxxxxxxx Agreements").
(11) the office furniture, fixtures and equipment identified in Schedule 2.2(a); Schedule 2.1(c)(12.1(11) lists hereto, which is utilized by Seller in the Auction Business, including without limitation all office furniture, fixtures and equipment located at 0 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxx 00000 and 0000 Xxxxx Xxxxxx Road, Traverse City, Michigan 49684 and the "traveling auction show set-up" which consists of the service centers laptop computers and substations software installed thereon described in Schedule 2.1(11) (the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded "Tangible Personal Property").
(12) an assignment of the lease to the certain warehouse space, totaling approximately 900 square feet and located at O’Neil Storage, 0000 X. Xxxxxxx Street, Santa Ana, California 92705, where some of the Auction Business Records are maintained.
(13) all of Seller’s rights and remedies under warranty or otherwise, against a manufacturer, vendor, or other Person for any defects in any Acquired Asset.
(14) all of Seller’s prepaid expenses, all other machinery (mobile or otherwise), equipment materials (including computer all promotional materials, images and office equipment), tools, furniture catalogues) and furnishings and other personal property that, all work in each case, are not classified process of Seller concerning the auctions scheduled to be held after the Closing Date as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g2.1(14);.
(h15) subject to Section 2.5, all rights Permits used or required on the operation of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) Auction Business if and to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of such Permits are assignable under applicable law and (ii) Buyer has obtained any necessary Consents for the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into assignment thereof by Seller after the date to Buyer. A list of this Agreement such Permits is set forth in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”Schedule 2.1(15);.
(j16) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights claims, suits, proceedings, or demands, of recoverywhatsoever nature, rights of set off or held by Seller against any third parties arising out of or related to the Auction Businesses and rights which concern operation of recoupment the Auction Businesses after the Closing, all of which are listed on Schedule 2.1(16) (the "Assigned Claims").
(17) all promotional materials, photographs and images and stationary, that have been used by Seller in the conduct of any of the Auction Businesses.
(18) all goodwill associated with the Auction Businesses and the Acquired Assets.
(19) the items of intellectual property and other intangible assets used by Seller exclusively in the conduct of the Auction Businesses and listed in Schedule 2.1(19) hereto.
(20) Any other assets of Seller against third parties that are not identified above in this Section 2.1 that are used by Seller in the conduct of the Auction Businesses and which are reasonably necessary for the conduct of the Auction Businesses in the manner and to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant has conducted it prior to the PJM AgreementsClosing; provided that, including in no event shall these other assets include (i) all Auction Revenue Rights to which Seller is entitled that are allocable to any of the Transferred Territory and assets included among the Excluded Assets as set forth in Section 2.2, (ii) all Financial Transmission Rights to which the Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
Retained Information or (q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(riii) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Retained Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory AssetsInformation.
Appears in 1 contract
Acquired Assets. On the terms and subject to the terms and conditions of this Agreement, at the Closing, the Buyer shall purchase from the Seller will and the Seller shall sell, transfer, assign, convey, transfer convey and deliver to the Buyer, all right, title and Buyer will purchaseinterest of the Seller in and to all of the tangible and intangible assets, assume business, goodwill and acquire from rights of the Seller, other than the Excluded Assets (all such assets, business, goodwill and rights being purchased hereunder are collectively referred to as the “Acquired Assets”), as the same shall exist immediately prior to the Closing, free and clear of all Encumbrances except for Liens (other than Permitted EncumbrancesLiens), all of Seller’s rightincluding, title and interest in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectivelywithout limitation, the “Acquired Assets”):following:
(a) the real property described on Schedule 2.1(a) (including the control buildings all accounts, notes and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”)receivables;
(b) all raw materials and supplies, work-in-process, processed or finished goods and other items of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Businessinventory, including the easements listed on Schedule 2.1(b) (including the control buildings and the all packaging, wrapping, shipping containers and other buildings and related improvements located thereon) (collectivelyparts, the “Transferred Easements”)wherever located;
(c) all of the substationsreal property, control buildingsmachinery, service centers equipment, furniture, fixtures, leasehold improvements, vehicles and other buildingstangible personal property, fixtures and improvements including, without limitation, all such assets currently located on at the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included facilities set forth on Schedule 2.2(a5.10(c); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) all Intellectual Property, the Distribution Facilitiesgoodwill associated therewith, licenses and sublicenses granted or obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the Laws of all jurisdictions, subject to the limitations set forth in Section 2.4;
(e) Buyer’s Shared Equipmentall of the interest and rights of the Seller in and to (i) the agreements, contracts, licenses, commitments, documents and leases (of real or personal property) (including, without limitation, any such agreements, contracts, licenses, commitments, documents and leases listed on Schedule 5.13) to which the Seller is a party or by which its assets are bound, save and except contracts of employment and those agreements specifically marked as Excluded Assets in the disclosure schedules to this Agreement, and (ii) all purchase and sale orders entered into by the Seller in the ordinary conduct of the Business (collectively, the “Contracts”), subject to the limitations set forth in Section 2.4;
(f) all Inventoriesuniversal product codes, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereofstationery, forms, labels, shipping material, catalogs, brochures, art work, photographs, advertising material and promotional material;
(g) except for all payments, deposits and prepaid expenses of the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of choses-in-action, warranties, refunds, rights of recovery, rights of set set-off and rights of recoupment of Seller against third parties any kind (including any such item relating to the payment of Taxes other than income Taxes), but excluding any such claims, choses-in-action, warranties of refunds or rights of recovery, rights of setoff or rights of recoupment to the extent relating to the Excluded Liabilities and not otherwise relating to any Acquired Assets or Assumed ObligationsLiabilities;
(oi) all Intellectual Property described rights and claims of the Seller, under insurance policies providing coverage relating to the Business, the Acquired Assets and/or the Assumed Liabilities, but excluding any rights and/or claims to the extent covering Excluded Liabilities and not otherwise relating to any Acquired Assets or Assumed Liabilities;
(j) all Permits, including those Permits which are listed on Schedule 5.9;
(k) all rights to the telephone and telecopy numbers, e-mail addresses, websites, domain names and listings used in Schedule 2.1(o) the Business, as well as all rights to receive mail and other communications addressed to the Seller and relating to the Business (including mail and communications from customers, suppliers, distributors, agents and others and payments with respect to the “Acquired Intellectual Property”Assets);
(pl) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant all books, records, ledgers, files, documents and correspondence, lists, drawings, specifications, studies, reports, advertising and promotional materials and other printed or written materials relating to the PJM Agreements, including Business (i) all Auction Revenue Rights to which Seller is entitled provided that are allocable the Buyer shall provide to the Transferred Territory and (ii) all Financial Transmission Rights Seller access to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share copies of the peak load of Allegheny’s PJM Load Zone pursuant foregoing (and/or access to the PJM Agreementsoriginals thereof, except if reasonably necessary) upon request to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred TerritoryExcluded Assets or Excluded Liabilities); and
(um) all other assets of any nature whatsoever owned, leased, licensed or used by the rights and obligations related Seller relating to Regulatory the Business or the Acquired Assets other than the Excluded Assets.
Appears in 1 contract
Acquired Assets. On Upon the terms and subject to the conditions of set forth in this Agreement, at the Closing, Seller will shall sell, assigntransfer, convey, transfer assign and deliver to the MF Buyer and the Xxxxxx Buyer, respectively, and applicable Buyer will shall purchase, acquire and assume and acquire from Seller, all of Seller’s Interests in and to the following assets, properties, rights and interests, free and clear of all Encumbrances except for (other than Permitted Encumbrances, all of Seller’s right, title and interest in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 ) (collectively, the “Acquired Assets”) (with respect to the MF Buyer, the Acquired Assets relating to the MF Interest, MF Facility and MF Site, and with respect to the Xxxxxx Buyer, the Acquired Assets relating to the Xxxxxx Interest, Xxxxxx Facility and Xxxxxx Site):
(a) the real property described on Schedule 2.1(a) (including the control buildings Sites and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”)Facilities;
(b) all of Seller’s Easements in the Transferred Territory that are primarily related those easements and other Contracts relating to the VA Distribution Business, including Sites set forth in Section 2.2(b) of the easements listed on Seller Disclosure Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred EasementsAssumed Real Property Contracts”);
(c) all of the substationsmachinery, control buildingsequipment, service centers vehicles, furniture, Inventory and other buildingspersonal property used primarily in connection with the operation of, fixtures and improvements or for consumption at, the Facilities or the Sites, including any property purchased but not yet located on at the Owned Real Property Facilities or a Transferred Easementthe Sites (collectively, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared LocationPersonal Property”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) all Permits and Environmental Permits relating to the Distribution Sites and the Facilities;
(e) Buyer’s Shared Equipmentthe Contracts set forth in Section 2.2(e) of the Seller Disclosure Schedule (collectively with the Assumed Real Property Contracts, the “Assumed Contracts”);
(f) all Inventories, but excluding those Inventories any Facility Books and Records in the possession of Seller to the extent the information therein is not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included duplicative of Facility Books and Records already in possession of Buyer as an Acquired Asset pursuant to Section 2.6(c) hereof;existing partial owner; Americas 92513545
(g) except any and all inventory items used for the Excluded Tangible Personal PropertyBusiness, all including: consumables; lubricants, chemicals, fluids, lubricating oils, fuel oil, filters, fittings, connectors, seals, gaskets, hardware, wire and other machinery (mobile or otherwise)similar materials; maintenance, equipment (including computer shop and office equipment)supplies; replacement, spare or other parts; tools, furniture special tools or similar equipment; and furnishings similar items of movable property and other personal property thatmaterials located at or in transit to, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily at the Facilities or the Sites or used in connection with the VA Distribution Business in Facilities or the Transferred Territory Sites (the collectively, “Tangible Personal PropertyInventory”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment use and sell electricity, capacity or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that ancillary services with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h)the Facilities for the period commencing after the Effective Time;
(i) except as set forth in Section 2.3(h), all Contracts Intellectual Property related to the Sites or Facilities or used in effect connection with the Business;
(1) all Acid Rain Allowances for calendar year 2018 and subsequent years and, for calendar year 2017, a pro-rata share of Acid Rain Allowances based on the number of days within 2017 before and after Closing; and (2) to the extent that Seller’s accounts hold CSAPR Allowances for 2017 and subsequent years relating to the Facilities, all such CSAPR Allowances, which Buyer shall receive subject to the obligation to remit as of the appropriate compliance date sufficient CSAPR Allowances to cover Seller’s share of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data applicable emissions for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and aspre-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influenceClosing period;
(k) all Permits the rights which, if not for the transactions contemplated herein, would have accrued to Seller in and to any causes of Selleraction, Claims (including Transferable Permitsrights under Insurance Policies to proceeds, that relate primarily refunds or distributions thereunder paid after the Closing Date) and defenses against third parties (including indemnification and contribution) relating to and to the VA Distribution Business in extent of any Acquired Assets or Assumed Liabilities arising after the Transferred TerritoryClosing Date;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable warranties, indemnities and Unbilled Revenueguaranties made or given by manufacturers, together with all rights to enforceoverhaulers, execute on or collect the sameassemblers, refurbishers, vendors and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off service providers and rights of recoupment of Seller against other comparable third parties to the extent relating to the Assumed ObligationsFacilities, the Sites 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;
(m) except as provided in Section 2.3(e) (with respect to the period prior to the Effective Time), the PJM capacity sales listed in Section 2.2(m) of the Seller Disclosure Schedule and all PJM capacity sales entered into by Seller after the Execution Date with respect to its Interest;
(n) except as provided in Section 2.3, all other assets, rights and interests used exclusively in relation to or in connection with the Facilities; and
(o) any and all Intellectual Property described in Schedule 2.1(oclaims of Seller (and any predecessor) (for refunds or credits of any ad valorem property Taxes attributable to the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE Assets for the Transferred Territory pursuant to taxable period that includes the PJM AgreementsClosing Date; Americas 92513545 provided, including (i) all Auction Revenue Rights to which Seller is entitled however, that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to shall not include the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory Excluded Assets.
Appears in 1 contract
Acquired Assets. On the terms Buyer hereby agrees to acquire from Seller, and subject Seller hereby agrees to the conditions of this Agreement, at the Closing, Seller will sell, assign, convey, transfer and deliver assign to Buyer, and Buyer will purchase, assume and acquire from Seller, free and clear of any and all Encumbrances except for liens, security interests, encumbrances, pledges, leases, claims, charges, conditional sale contracts, or mortgages (collectively, “Liens”) (other than Permitted EncumbrancesLiens (as defined below)), substantially all of the assets of the Seller owned by the Seller, which shall include only the following assets and shall not include the Excluded Assets (collectively referred to herein as the “Acquired Assets”). The Acquired Assets shall be made up of the following:
(a) All of Seller’s rightrights, title and interest in and to the Website, and any other rights associated with the Website (the “Web Assets”), including any intellectual property rights, all related domains, logos, customer lists and agreements, development contracts, email lists, passwords, usernames and trade names; and all of the related social media accounts including but not limited to, Instagram, Twitter, Facebook, Instagram, and Pinterest at closing;
(b) All of Seller’s rights, title and interest in and to assets that relate to, or are used or held for use in connection with the operation of, the App (collectively with the App, the “App Assets”, and together with the Web Assets, the “Identifiable Assets”), and any other rights associated with the App, including any development contracts, intellectual property rights, all related logos, customer lists and agreements, email lists, passwords, usernames and trade names;
(c) All other intangible property rights in and to any requirements, processes, formulations, methods, technology, know-how, formulae, trade secrets, trade dress, designs, inventions and other proprietary rights and all documentation embodying, representing or otherwise describing any of the foregoing, owned or held by Seller to carry out in connection with the Identifiable Assets; all patents, copyrights, trade names, trademarks and service marks of Seller and any applications therefor, including, but not limited to, the name of, “SPKR”, the business name, Spkr. Inc., the App, and the Website and all of its VA Distribution Business respective contents used in connection with the Identifiable Assets, and all applications therefor; all source code for proprietary software that is owned by Seller and included in any intellectual property used or held for use in the Transferred Territory as operation of the Effective TimeApp or the Website, except for the assets expressly excluded below as currently operated, together with claims and causes of action with respect to such intellectual property, whether accruing before, on, or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant hereof/accruing on or after the date hereof, including all rights to Section 2.6 and claims for damages, restitution, and injunctive and other legal or equitable relief for past, present or future infringement, misappropriation, or other violation thereof (collectively under the foregoing paragraph “Identifiable Assets IP Rights”);
(d) all information, records, documents and files of Seller that relate in a material way to, or are used primarily or held for use in connection with the operation of, the Identifiable Assets (collectively, the “Acquired Assets”):
(a) the real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real PropertyRecords”);
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easementprovided, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists Seller shall be entitled to keep a copy of all of the Shared Locations in the Transferred Territory;
(d) the Distribution FacilitiesAcquired Records;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; providedwarranties, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreementsindemnities, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all similar rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in Identifiable Assets and the Transferred TerritoryIdentifiable Assets IP Rights; and
(uf) All social media accounts, sites and services used by Seller in connection with the rights Identifiable Assets, all content created or used in connection therewith, in each case to the extent transferrable in accordance with the applicable terms of service or other user agreements between the Seller and obligations related the operator of such sites and services to Regulatory Assetswhich such accounts pertain, and all credentials with respect to such accounts; (the “Social Media Accounts”).
Appears in 1 contract
Acquired Assets. On At the Closing, pursuant to the terms and subject to the conditions of set forth in this Agreement, at the Closing, each Seller will sell, convey, assign, conveytransfer, transfer contribute and deliver to Buyer, and Buyer will purchase, assume and acquire from Seller, free and clear of any and all Encumbrances except for Permitted Encumbrancesor Liabilities (other than the Assumed Liabilities), all of such Seller’s rightrespective property, title assets and interest in rights of every kind and to nature, whether real, personal or mixed, tangible or intangible, whether identifiable or contingent, wherever located, whether or not reflected on the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as respective books of the Effective TimeSellers, except for relating to or used in connection with the assets expressly excluded below or excluded in Section 2.2conduct of the Business, including the assets more specifically described below and added after following (but excluding the date hereof pursuant to Section 2.6 (collectively, the “Acquired Excluded Assets”):
(a) the all leasehold or sub-leasehold estates, licenses and other rights to use or occupy any land, buildings, structures, improvements, fixtures or other interests in real property described on Schedule 2.1(a) (including held by the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”)Sellers;
(b) all of Seller’s Easements in fixed assets and other tangible personal property owned or leased by the Transferred Territory that are primarily related to the VA Distribution BusinessSellers, including the easements listed on Schedule 2.1(b) (including the control buildings all machinery, tools, equipment, computers, furniture, office equipment, telephone systems, fixtures, supplies and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”)vehicles;
(c) all Inventory of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred TerritorySellers, whether located on Owned Real Property hand, or on order, in transit or held by others on a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territoryconsignment basis;
(d) all Accounts Receivable of the Distribution FacilitiesSellers and all claims arising in connection therewith;
(e) Buyer’s Shared Equipmentall amounts due from merchant credit processors to Sellers and all claims arising in connection therewith, but excluding the Merchant Reserves;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1Contractual Obligations of the Sellers (other than the Contractual Obligations included in the Excluded Assets as set forth in Section 1.1.2(e)) or 2.1(c)(2) or deemed to be included as an Acquired Asset and all rights pursuant to Section 2.6(c) hereofthereto;
(g) except for the Excluded Tangible Personal all goodwill, other intangible rights and property (including all Intellectual Property, all other machinery Licenses, Company Systems and Company Technology) and causes of action, claims and rights of any kind as against others (mobile whether by Contractual Obligation or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and ) of the Sellers arising under or relating to the Business or any of the other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g)or the Assumed Liabilities;
(h) subject to Section 2.5all the Sellers’ books and records (financial, accounting and other), correspondence and all sales, marketing, advertising, packaging and promotional materials, customer lists, pricing lists, files, data, software, drawings, engineering and manufacturing data and other technical information and data, all rights personnel records of Seller as lessee the Transferred Employees and all other business and other records, in each case arising under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) or relating to the extent relating to equipment Business or vehicles primarily related to any of the VA Distribution Business in other Acquired Assets or the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h)Assumed Liabilities;
(i) all Contracts in effect as Permits and all pending applications therefor and all rights and incidents of interest therein relating to the Business or any of the date of this Agreement that relate primarily other Acquired Assets or the Assumed Liabilities, excluding only such Permits to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, poleextent not legally transferable (which non-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that transferrable Permits are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”identified on Schedule 1.1.1(i));
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assetsany claims, GIS informationrights or interests of any Seller in or to any deposits, books and records; meter reading and service data; operatingadvance payments, safety and maintenance records; warranty information; engineering designscredits or charges, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materialsprepaid Taxes, and prepaid expenses including without limitation, (1) security deposits with third party suppliers, vendors, service providers or landlords, and lease and rental payments, (2) rebates, abatements or other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory recoveries and in Seller’s possession or in the possession of (3) any third parties within Seller’s reasonable control or influenceother prepayments;
(k) all Permits rights, claims, credits, causes of Selleraction or rights of setoff against third parties, rights of recoupment, defenses, remedies and benefits of the Sellers arising under or relating to the Business or any of the other Acquired Assets or the Assumed Liabilities, including Transferable Permitswithout limitation, that relate primarily to the VA Distribution Business in the Transferred Territoryrights under vendors’ and manufacturers’ warranties, indemnities and guaranties;
(l) all unexpired warranties relating to the extent assignable to Buyer under the terms of the applicable insurance policies without adversely impacting Sellers’ coverage and rights thereunder with respect to events, occurrences and other matters arising from the operations of the Business and ownership of the Assets on or prior to Closing, each Seller’s insurance policies and rights and benefits thereunder with respect to the Business or any of the other Acquired AssetsAssets or the Assumed Liabilities, including without limitation, (1) all rights pursuant to proceeds from such insurance policies, (2) all claims, demands, proceedings and causes of action asserted by any Seller under such insurance policies and (3) any letter of credit related thereto;
(m) all Accounts Receivable and Unbilled Revenueof the Equity Securities of Vapor Zone Franchising, together with all rights to enforceLLC, execute on or collect the samea Delaware limited liability company (“Vapor Zone Franchising”), and all rights relating to the Customer Deposits (but not the cash related to such deposits);owned by International Vapor; and
(n) all claims, causes other property and assets used in the conduct of action, rights the Business or the ownership of recovery, rights any of set off the other Acquired Assets or the Assumed Liabilities. All the property and rights of recoupment of Seller against third parties assets to be transferred to the extent relating Buyer hereunder are herein referred to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (collectively as the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory Assets.”
Appears in 1 contract
Acquired Assets. On the terms and subject to the conditions set forth in this Agreement and subject to approval of this Agreementthe Bankruptcy Court under Sections 105, 363, 365 and 1141 of the Bankruptcy Code, at the Closing, Closing the Seller will shall sell, assign, transfer, convey, transfer and deliver, and cause the Selling Subs to sell, assign, transfer, convey and deliver to Buyer, the Purchaser and Buyer will purchase, assume and acquire from Sellerthe Purchasing Subs, free and clear of all Encumbrances liens, claims, interests and encumbrances of any nature except for Permitted EncumbrancesExceptions, all of Seller’s right, title and interest in the Purchaser and to the assets used by Purchasing Subs shall purchase and accept from the Seller to carry out its VA Distribution Business in and the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 Selling Subs (collectively, the “assets set forth in Section 1.1(a), Section 1.1(b) and Section 1.1(c) are referred to as "Acquired Assets”"):
(a) all of the real property described outstanding equity interests (the "Interests") of the subsidiaries of the Seller set forth on Schedule 2.1(a1.1
(a) (including each a "Transferred Sub" and collectively the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”"Transferred Subs");.
(b) all legal and beneficial right, title, and interest of Seller’s Easements the Seller and of each Selling Sub in and to any and all assets of every kind and description, whether tangible or intangible, real, personal or mixed, wherever situated, owned, held or used by the Seller (or any Selling Sub) or in which the Seller (or any Selling Sub) has any right, title or interest that is owned, directly or indirectly, leased or otherwise held primarily for use in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwiseAssets and except for any executory contracts and leases which are not specifically listed on Schedules 1.1(b)(ii)(A), equipment (including computer and office equipment1.1(b)(ii)(B), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used 1.1(b)(ii)(D) or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”1.1(b)(vi)(B), provided, that with respect to vehicles and trailers owned by Seller, specifically including the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);following:
(i) all Contracts in effect as accounts receivable (which are not excluded pursuant to Section 1.2(b)) arising out of the operation of the Business existing on the date hereof including, without limitation, those listed or described on Schedule 1.1(b)(i), or arising in the ordinary course under the Customer Contracts after the date hereof (the "Accounts Receivable");
(ii) all rights and incidents of this Agreement interest of the Seller and of each Selling Sub to:
(A) all of the waste management services agreements between the Seller (or one of the Selling Subs) and a customer primarily relating to the Business (the "Customer Contracts") existing on the date hereof or arising in the ordinary course after the date hereof and listed or described on Schedule 1.1 (b)(ii)(A) (which Schedule will be provided by Purchaser prior to the Due Diligence Expiration Date);
(B) the agreements, contracts and arrangements between the Seller (or one of the Selling Subs) and a vendor or other third party providing goods or services primarily relating to the Business listed on Schedule 1.1(b)(ii)(B) (which Schedule will be provided by the Purchaser prior to the Due Diligence Expiration Date);
(C) to the extent transferable and exclusive of those which pertain to the Excluded Employees, all of the rights of the Seller (or one of the Selling Subs) regarding confidentiality, assignment of invention, and/or non-competition with respect to the Transferred Employees and former employees; and
(D) all other agreements, contracts and arrangements that are listed or described on Schedule 1.1(b)(ii)(D) (which Schedule will be provided by the Purchaser prior to the Due Diligence Expiration Date);
(iii) all equipment, computers, furniture, furnishings, fixtures, office supplies, vehicles and all other tangible personal property currently owned by, or on order to be delivered to, the Seller or a Selling Sub, that are used primarily in the operation of the Business or are located on, or to be delivered to, any Owned Real Property or premises subject to the Real Property Leases (collectively, the "Tangible Personal Property"), including without limitation, such of the foregoing as are listed or described on Schedule 1.1(b)(iii);
(iv) to the extent transferable, all U.S. and other letter patent, patents, patent applications, patent licenses, software licenses and know-how licenses, trade names, trademarks, registered copyrights, service marks, trademark registrations and applications, service xxxx registrations and applications, copyright registrations and applications, internet addresses and other internet related assets used primarily in the operation of the Business, including without limitation such of the foregoing as are listed or described on Schedule 1.1(b)(iv) (the "Intellectual Property"), provided that the Purchaser (or one of the Purchasing Subs) shall, to the extent it can and without cost (other than de minimis administrative costs) to the Purchaser (or such Purchasing Sub), (A) grant to the Seller and the Selling Subs a perpetual royalty-free and nontransferable license to use the Intellectual Property for the operation of the Seller's and the Selling Subs' businesses other than the Business after the Closing or, (B)in the alternative, transfer all or any portion of such Intellectual Property to the Seller and the Selling Subs;
(v) all rights and claims under all warranties, representations and guarantees made by suppliers, manufacturers and contractors in connection with the Acquired Assets and all rights and claims relating to Assumed Liabilities except those shown or described on Schedule 1.1(b)(v);
(A) the real property used primarily in the operation of the Business that is listed and described on Schedule 1.1(b)(vi)(A) (the "Owned Real Property") and (B) the real property leases used primarily in the operation of the Business that are listed or described in Schedule 1.1(b)(vi)(B) (the "Real Property Leases") (which Schedule will be provided by the Seller prior to the Due Diligence Expiration Date);
(vii) to the extent transferable, all licenses, permits, authorizations and approvals issued to the Seller or a Selling Sub by any Governmental Entity primarily relating to the operation of the Business, including without limitation, such of the foregoing as are listed or described on Schedule 1.1(b)(vii);
(viii) the bank accounts and lockbox arrangements primarily relating to the Business that are listed or described on Schedule 1.1(b)(viii) (excluding all rights or incidents of interest with respect to the cash or cash equivalents in such bank accounts or lock box arrangements to the extent that such cash is excluded in the calculation of Working Capital pursuant to Section 1.7(b));
(ix) all prepaid items and deposits existing on the date hereof relating to the Business that are listed or described on Schedule 1.1(b)(ix) or that relate primarily to the VA Distribution Business arising in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller ordinary course after the date hereof;
(x) all books and records of this Agreement in accordance with the terms Seller and the Selling Subs primarily relating to the operation of Section 7.1the Business;
(xi) all of the rights, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”properties or assets that are listed or described on Schedule 1.1(b)(xi);
(jxii) all customer lists inventories of supplies and customer information databases (including customer load data); vendor lists; operational spare parts of the Seller and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, Selling Subs relating to the extent operation of the Business;
(xiii) all goodwill primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred TerritoryBusiness; and
(uxiv) to the extent assignable, rights of indemnification from all non-affiliated third parties for liabilities and obligations relating to the Business or the Acquired Assets.
(c) the rights company seal, minute books, charter documents, stock or equity record books and obligations related such other books and records as pertain to Regulatory Assetsthe organization, existence or capitalization of each Transferred Sub as well as any other records or materials relating to each Transferred Sub generally.
(d) Notwithstanding anything contained in this Agreement to the contrary, if, at or prior to the Closing, the Seller shall have obtained a Confirma tion Order authorizing the issuance to the Purchaser of 100% of the reorganized equity interests of the Domestic Transferred Subs listed on Schedule 1.1
Appears in 1 contract
Acquired Assets. On Subject to the terms and subject to the conditions of this Agreement, at the Closing, Seller will Sellers agree to sell, assign, conveytransfer, transfer convey and deliver to Buyer, and Buyer will purchase, assume agrees to purchase and acquire from SellerSellers, free and clear of all Encumbrances except for Permitted EncumbrancesLiens, all of Seller’s Sellers' right, title and interest in and to the all of their respective rights, properties and assets used by Seller of every kind, nature, character and description (whether real, personal or mixed, whether tangible or intangible, and wherever located) and whether or not required to carry out its VA Distribution Business be reflected on a balance sheet prepared in the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 accordance with GAAP (collectively, the “Acquired "Assets”):
(a) the real property described on Schedule 2.1(a) ("), including the control buildings and the other buildings and related improvements located thereon) (collectivelywithout limitation, the “Owned Real Property”);
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);following:
(i) all Contracts goodwill of the Business as a going concern;
(ii) all contracts, agreements, leases, instruments, obligations, arrangements or other understandings (whether written or oral) (including amendments and supplements, modifications, and side letters or agreements) (the "Business Contracts"), including those identified in effect Section 1.1(a)(ii) of the written statement delivered to Buyer by Sellers herewith and dated as of the date of this Agreement that relate primarily to hereof (the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by "Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”Disclosure Schedule");
(jiii) all customer lists trade accounts receivable (excluding those receivables sold to The CIT Group/Commercial Services, Inc. ("CIT Group") pursuant to that certain Factoring Agreement dated as of November 26, 2002, as amended, (the "Factor Risk Accounts") and customer information databases all notes, bonds and other evidences of indebtedness and rights to receive payments arising out of sales ("Accounts Receivable"), including customer load data); vendor lists; operational those identified in Section 1.1(a)(iii) of the Seller Disclosure Schedule;
(iv) all marketing, sales and performance data for the Acquired Assetspromotional literature, GIS informationbooks, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studiesfinancial records, reportsbills, creative accounting, internal and audit records, operating manuals, personnel records, customer and supplier lists and files, preprinted materials and similar materials;
(v) all rights, advertising title and promotional materialsinterests in and to all real property leases, including improvements, fixtures, fittings thereon and other writtenappurtenances thereto, printed or electronic materials, including those identified in each case, Section 1.1(a)(v) of the Seller Disclosure Schedule;
(vi) all rights to the extent primarily all telephone numbers related to the VA Distribution Business in and the Transferred Territory rights to the names "Xxxxxxx.xxx," "One Girl Who . . ." and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influencecorporate name "NYC Sweaters, Inc.";
(kvii) all Permits of Sellerintangible assets, including Transferable PermitsIntellectual Property and other intangible assets of an intellectual property nature, that relate primarily to including the VA Distribution Business in Intellectual Property listed on Section 1.1(a)(vii) of the Transferred TerritorySeller Disclosure Schedule;
(lviii) all unexpired warranties relating payments, deposits (including security deposits) and prepaid expenses and rights to make claims under and other benefits of all contracts of insurance with respect to the Acquired Assets, if any;
(mix) all Accounts Receivable raw materials, components, work-in-process, finished products, inventory, office and Unbilled Revenueother supplies, spare parts, packaging materials, samples and other accessories related thereto, wherever located, including any of the foregoing purchased subject to any conditional sales or title retention agreement in favor of any other Person, together with all rights against suppliers of such inventories;
(x) all furnishings, furniture, fixtures, equipment, tools, machinery, vehicles, art work and other tangible personal property, including the tangible personal property listed on Section 1.1(a)(x) of the Seller Disclosure Schedule;
(xi) all rights under warranties, representations and guarantees made by suppliers, manufacturers or contractors;
(xii) all Permits, including the Permits listed on Section 1.1(a)(xii) of the Seller Disclosure Schedule to enforcethe extent such Permits are transferable by Sellers;
(xiii) all cash and cash equivalents such as bank deposits, execute on certificates of deposit and marketable securities
(xiv) all claims and causes of action against other Persons (regardless of whether or collect the samenot such claims and causes of action have been asserted), and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claimsof indemnity, causes of actionwarranty rights, rights of recoverycontribution, rights to refunds, rights of set off reimbursement and other rights of recoupment recovery (regardless of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent whether such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory Assetsare currently exercisable).
Appears in 1 contract
Acquired Assets. On the terms and subject to the conditions of set forth in this Agreement, at the Closing, Closing the Seller will shall sell, assign, transfer, convey, transfer and deliver to Buyer, and Buyer will purchase, assume and acquire from Seller, the Purchaser free and (where applicable) clear of all Encumbrances except for Permitted Encumbrancesliens, claims, interests and encumbrances of any nature, and the Purchaser shall purchase and accept from the Seller the assets of the Seller (the "Seller Assets") as hereinafter described (collectively, the assets set forth in this Section 2.1 are referred to as "Seller's Assets"). Any liens or encumbrances assumed by Purchaser are identified in Schedule 2.2:
(a) all of Seller’s legal and beneficial right, title title, and interest of the Seller, whether prospective or actual, in and to the assets Seller Assets, whether tangible or intangible, real, personal or mixed, wherever situated, owned, held or used by the Seller to carry out its VA Distribution Business or in which the Seller has any right, title or interest that is owned, directly or indirectly, leased or otherwise held primarily for use in the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, Business and specifically including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the “Acquired Assets”):
(a) the real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”);
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);following:
(i) all Contracts in effect as accounts receivable arising out of the operation of the Business existing on the date of this Agreement that relate primarily to the VA Distribution Business hereof including, without limitation, those listed or described on Schedule 2.1(a)(i), or arising in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any ordinary course under the Customer Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date hereof (the "Accounts Receivable");
(ii) all rights and incidents of this Agreement interest of the Seller to:
(A) all of the services agreements between the Seller and a customer in accordance any way relating to the Business (the "Customer Contracts") existing on the date hereof or arising in the ordinary course after the date hereof and listed or described on Schedule 2.1(a)(ii)(A) (which Schedule will be provided by Purchaser prior to the Closing Date);
(B) the agreements, contracts and arrangements between the Seller and a vendor or other third party providing goods or services relating to the Business listed on Schedule 2.1(a)(ii)(B) (which Schedule will be provided by the Purchaser prior to the Closing Date);
(C) all of the rights of the Seller regarding confidentiality and/or non-competition with respect to its current and former employees; and
(iii) all equipment, computers, furniture, furnishings, fixtures, office supplies, vehicles and all other tangible personal property currently owned by, or on order to be delivered to, the terms Seller, that are used in the operation of Section 7.1the Business or are located on, but not including or to be delivered to, any owned real property or premises subject to the Power Purchase Agreements except as otherwise provided in Section 7.23 real property leases (collectively, the “Transferred Contracts”"Tangible Personal Property"), including without limitation, such of the foregoing as are listed or described on Schedule 2.1(a)(iii);
(jiv) all customer lists trade names, trademarks, registered copyrights, service marks, trademark registrations and customer information databases (including customer load data); vendor lists; operational applications, service xxxx registrations and performance data for the Acquired Assetsapplications, GIS informationcopyright registrations and applications, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, internet addresses and other written, printed or electronic materials, in each case, to the extent internet related assets used primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession operation of the Business as are listed or in described on Schedule 2.1(a)(iv) (the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits"Intellectual Property");
(nv) all claimsrights and claims under all contracts, causes of actionwarranties, representations and guarantees made by suppliers, manufacturers and contractors in connection with the Seller's Assets and all rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent claims relating to the Assumed Obligations;
(o) all Intellectual Property Liabilities except those shown or described in on Schedule 2.1(o) (the “Acquired Intellectual Property”2.1(a)(v);
(pvi) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant all licenses, permits, authorizations and approvals issued to the PJM AgreementsSeller by any Governmental Entity relating to the operation of the Business, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share without limitation, such of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreementsforegoing as are listed or described on Schedule 2.1(a)(vii);
(qvii) rights to serve all surety bonds, collateral bonds, letters of credit, cash trusts, cash deposits or the existing certified service territory of Seller in proceeds thereof for the portion of the Commonwealth of Virginia described in Annex A heretoFinancial Assurance requirements or performance bond requirements, whether or not required under applicable Environmental Laws;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(tviii) all carbon credits books and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to records of the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory Assets.Business;
Appears in 1 contract
Acquired Assets. On (a) Subject to the terms and subject to the conditions set forth in this Agreement and on the basis of this Agreement, at the Closingrepresentations and warranties herein, Seller will agrees to sell, assign, convey, transfer transfer, assign and deliver to Buyer, Buyer and Buyer will agrees to purchase, assume receive and acquire accept from Seller, free and clear of Seller all Encumbrances except for Permitted Encumbrances, all of Seller’s right, title and interest in and to the assets and properties of every kind, character and description (other than property and rights specifically excluded in this Agreement), used in or for the benefit of the Dialysis Business, whether tangible, intangible, real, personal or mixed, and wherever located, including any assets of any of Seller’s Affiliates which are actually used or useful in or necessary for the conduct of the Dialysis Business or otherwise owned by Seller (collectively referred to carry out its VA Distribution Business in the Transferred Territory hereinafter as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the “Acquired Assets”):
(a) ), including but not limited to the real property described on assets set forth at Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”);1.1 hereto.
(b) Without limitation of the foregoing, the Acquired Assets shall include, with respect to the Dialysis Business, all tangible property, equipment, inventories (including office supplies and an average of at least eighteen (18) treatment days of medical supplies such as dialysis supplies, EPO and other similar drugs and inventory items used for dialysis treatments at each Center, with no Center having less than twelve (12) treatment days’ usage of each individual supply item required for dialysis treatments on site), tenant improvements (regardless of whether they are accounted for as an asset on the books of Seller or of any Affiliate of Seller’s Easements in the Transferred Territory that are primarily related ), goodwill, software (to the VA Distribution extent transferable), Intellectual Property, prepaid expenses and deposits (other than prepaid items identified for separate payment by Buyer at Closing on Schedule 2.1 hereto), Assigned Dialysis Contracts, Assigned Personal Property Leases, books and records (including photocopies of patient medical records and files for all patients being treated at the Centers as of the Closing Date, and patient lists and appointment books relating to patients treated at the Centers within one year prior to the Closing Date, in each case to the extent transferable under applicable Law), any Seller policies and procedures relating to the Dialysis Business, including each Center’s telephone and facsimile numbers (to the easements listed on Schedule 2.1(b) extent such numbers are unique to the Dialysis Business), all Licenses and permits (including without limitation all Medicare provider numbers for the control buildings Dialysis Business) and certificates of need to the extent transferable to Buyer, and all benefits, proceeds and other buildings amounts payable under any Seller policy of insurance. For the sake of clarity, prior to Closing, Seller shall acquire all right, title and related improvements located thereon) (collectivelyinterest in and to any leased equipment that is used, held for the “Transferred Easements”);use or benefit of or necessary by Seller in connection with the Centers, and such acquired equipment shall constitute Acquired Assets.
(c) all The parties acknowledge and agree that the portion of Inventory consisting of prescription drugs (“Prescription Drug Inventory”) shall be, immediately prior to the Closing, held in locked storage facilities at each Center in the custody of the substationsmedical director of such Center. To ensure continuity of patient care, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred EasementClosing Date, unless the Prescription Drug Inventory maintained at each Center shall be retained by such substationmedical director or, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territoryevent that the medical director of any Center following the Closing is different than the medical director immediately prior to Closing, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or Prescription Drug Inventory shall be deemed to be included as an Acquired Asset pursuant transferred by the medical director of such Center prior to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property thatClosing to the custody of the new medical director of such Center, in each case, are not classified who shall retain or gain, as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”)applicable, provided, that with respect means to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data access each locked storage facility for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession benefit of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory AssetsBuyer.
Appears in 1 contract
Samples: Asset Purchase Agreement
Acquired Assets. On Subject to the terms and subject to the conditions of this Agreementherein set forth, at the Closing, Seller will Sellers shall sell, assign, transfer, convey, transfer and deliver to BuyerPurchaser free and clear of all Liens (other than the Permitted Liens), and Buyer will purchase, assume Purchaser shall purchase and acquire accept from SellerSellers, free and clear of all Encumbrances except for Liens (other than the Permitted EncumbrancesLiens), all of Seller’s Sellers' right, title, and interest in, to, and under the following, as the same shall exist on the Closing Date (collectively, the "Acquired Assets"): except as provided in Section 2.1(b) below, all assets owned by Sellers, wherever located, whether real, personal, or mixed, tangible or intangible, which shall also include Sellers' (i) interests in joint ventures and other ownership interests or business arrangements (to the extent any required written consent(s) or approval(s) of the other joint venture members, partners, or other parties thereto are obtained), (ii) prepaid items in respect of the Acquired Assets, (iii) Inventory, (iv) rebate accounts receivable, including such rebate accounts receivable listed on Schedule 2.1(a)(iv) hereto (such Schedule to include the name of each payor and the corresponding amount owed with respect to such rebate), (v) Government Payment Program Proceeds, (vi) if any, the Included Mariner Receivables (as defined in Section 2.3(a)(iv) below), (vii) right, title and interest in and to all of the names of Sellers and any variations thereof (including "American Pharmaceutical Services," "APS," and all corporate names, fictitious names, product names and service names) (subject to Section 7.14 hereof), and (viii) Medicare Part B Business and Assets as it relates only to the provision of Medicare Part B Products and Services to Independent Facilities (the "Acquired Medicare Part B Business and Assets").
(a) are herein referred to as the "Selling Affiliates") to sell, assign, transfer, convey, and deliver to Purchaser at Closing free and clear of all Liens (other than the Permitted Liens), and Purchaser shall purchase and accept from such Selling Affiliate(s) free and clear of all Liens (other than the Permitted Liens), all of such Selling Affiliates' right, title, and interest in, to, and under the assets identified in Schedule 2.1(a) hereto which are not owned by any Seller but which are used by Seller to carry out its VA Distribution Business in the Transferred Territory Acquired Business, as of the Effective Time, except for same shall exist on the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 Closing Date (collectively, the “Acquired "Additional Assets”):
(a) "). It is hereby understood and agreed that only the real property described on Additional Assets owned by the applicable Selling Affiliate identified in Schedule 2.1(a) (including the control buildings hereto may be acquired pursuant to this Agreement, and the no other buildings and related improvements located thereon) (collectively, the “Owned Real Property”);
(b) all assets of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred TerritorySelling Affiliate whatsoever, whether located on Owned Real Property real, personal, or a Transferred Easementmixed, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventoriestangible or intangible, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to shall be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned acquired by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory AssetsPurchaser hereunder.
Appears in 1 contract
Samples: Asset Purchase Agreement (Mariner Post Acute Network Inc)
Acquired Assets. On the terms and subject to the conditions of set forth in this Agreement, and subject to Section 2.1.2, at the Closing, Seller will the Company shall sell, convey, assign, transfer and deliver to Buyer, and shall cause each of its Subsidiaries to sell, convey, assign, transfer and deliver to Buyer, and Buyer will shall purchase, assume acquire and acquire accept from Sellereach such Person, free and clear of all Encumbrances except for any Liens other than Permitted EncumbrancesLiens, all of Sellersuch Person’s right, title and interest in and to the assets used by Seller to carry out its VA Distribution Business in Assets at the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 Closing (collectively, but specifically excluding any Excluded Assets (as defined below), the “Acquired Assets”):
(a) the real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”);
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);following:
(i) all Contracts in effect as of the date of this Agreement that relate primarily tangible and intangible property related to the VA Distribution Business in the Transferred TerritoryBusiness, including operating agreementsequipment, franchise agreementsclient lists, customer contractspatient lists, electrical service agreementsreferral lists, interconnect agreementsrecords, interchange agreementsgoodwill and other intangible assets;
(ii) all non-governmental or quasi-governmental payor Contracts and provider agreements (including, borderline agreementsMedicare Advantage Contracts, encroachment agreementsU.S. Family Health Plan (“USFHP”) Contracts, pole-attachment agreementsMedicare Prescription Drug Plan (Part D) Contracts, joint-use agreementsSpecial Needs Plans Contracts, Managed Medicaid Contracts and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”Accountable Care Organizations);
(jiii) all customer lists purchasing Contracts from suppliers or other vendors;
(iv) subject to Section 9.16, the Company Intellectual Property;
(v) all accounts receivable associated with non-governmental or quasi-governmental payor Contracts and customer information databases provider agreements (including customer load dataincluding, Medicare Advantage Contracts, U.S. Family Health Plan (“USFHP”) Contracts, Medicare Prescription Drug Plan (Part D) Contracts, Special Needs Plans Contracts, Managed Medicaid Contracts and any Contracts with Accountable Care Organizations); vendor lists; operational ;
(vi) all Inventory;
(vii) subject to Section 2.1.2(viii), all books and performance data for records related to the Acquired Assets, GIS informationincluding any books of account, books ledgers and general financial and accounting records; meter reading , client lists, price lists, vendor lists, client and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, inquiry files, documentsresearch and development files, studiesrecords, reports, creative materials, advertising data and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of correspondences (including all correspondence with any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such depositsGovernmental Entity);
(nviii) all claimsany asset related to any employee benefit plan, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the program or arrangement that is an Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee RecordsLiability, to the extent permitted by Lawapplicable law;
(six) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) Policies and all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territoryrights of any nature with respect thereto; and
(ux) the rights and obligations any other assets of any nature whatsoever that are related to Regulatory Assetsor used in connection with the Business, and the goodwill associated therewith.
Appears in 1 contract
Acquired Assets. On Upon the terms and subject to the conditions of this Agreement, at the Closingcontained herein, Seller will sell, assign, convey, shall sell and transfer and deliver to Buyer, and Buyer will purchase, assume shall purchase and acquire from Seller, at the Closing (as hereinafter defined), all of the properties and assets of Seller used in the operation of the Business as of the Closing (the "Acquired Assets") other than the Excluded Assets (as hereinafter defined), free and clear of all security interests, liens, restrictions, claims, encumbrances or charges of any kind ("Encumbrances") other than Permitted Encumbrances except for Permitted Encumbrances, all of Seller’s right, title and interest in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory (as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2hereinafter defined), including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectivelywithout limitation, the “Acquired Assets”):following:
(a) the real All tangible personal property described on Schedule 2.1(a(such as machinery, equipment, inventories, furniture and motor vehicles) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”)owned by Seller;
(b) all of Seller’s Easements All accounts, notes and other receivables owned by Seller (other than those included in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”definition of Excluded Assets);
(c) Subject to the provisions of Section 1.4 of this Agreement, all of rights in and with respect to the substationsassets associated with i. the Group Dental Insurance Policy issued by Seaboard Life Insurance Company, control buildingsUSA to Seller (the "Dental Policy"), service centers ii. the Group Long Term Disability Insurance Policy issued by The Xxxx Xxxxxx/Provident Life Insurance Company to Seller (the "Long Term Policy"), iii. the Group Short Term Disability Insurance Policy issued by The Xxxx Xxxxxx/Provident Life Insurance Company to Seller (the "Short Term Policy"), and other buildingsiv. the Xxxxxxx Companies 401(k) Plan (the "401(k) Plan"), fixtures related Trust Agreement and improvements located on related Services Agreement (the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i"Services Agreement") used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territorywith Benefit Services Corporation;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all InventoriesAll claims, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Propertydeposits, all other machinery (mobile or otherwise)prepayments, equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claimsrefunds, causes of action, choses in action, rights of recovery, rights of set off and rights of recoupment owned by Seller (other than those included in the definition of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”Excluded Assets);
(pe) All rights of Seller in, to CRRs and under all leases of personal property entered into by Seller in connection with the Business prior to the date hereof as set forth in Schedule 1.1 hereto and any other leases which Buyer shall have agreed in writing to assume as provided in Section 1.4 of this Agreement (collectively, the "Leases");
(f) All of Seller's right, title and interest in and to the name "Xxxxxxx Communications" and related logos, the trade names related to the Business, and all customer lists and trade secrets related to the Business;
(g) All rights of Seller in, to and under those contracts, commitments, purchase and sale orders, work orders, agreements and arrangements entered into by Seller in connection with the Business prior to the date hereof as described in Schedule 1.1 hereto and any other contracts which Buyer shall have agreed in writing to assume as provided in Section 1.4 of this Agreement (collectively, the "Contracts");
(h) All franchises, approvals, permits, licenses, orders, registrations, certificates, variances and similar rights obtained from governments and governmental agencies in which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreementshas any right, including title or interest;
(i) all Auction Revenue Rights to which All books and records of Seller is entitled that are allocable related specifically to the Transferred Territory Business, including without limitation, property records, current payroll records, accounting records, supplier lists, parts lists, manuals, files, and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable any similar items related to the Transferred Territory based on Acquired Assets or the Transferred Territory’s load ratio share conduct of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase AgreementsBusiness;
(qj) All of Seller's intellectual property, the goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to serve protection of interests therein under the existing certified service territory laws of Seller in all jurisdictions (collectively, the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory"Proprietary Rights"); and
(uk) the rights Seller's cash and obligations related to Regulatory Assetscash equivalents.
Appears in 1 contract
Samples: Asset Purchase Agreement (Multi Link Telecommunications Inc)
Acquired Assets. On (a) Upon the terms and subject to the conditions set forth in this Agreement, at the Closing (as defined below), Transferor hereby agrees (and Parent shall cause Transferor) to convey, transfer, assign and deliver (or cause to be conveyed, transferred, assigned and delivered) to Transferee, and Transferee hereby agrees (and E*TRADE shall cause Transferee) to acquire from Transferor, all right, title, and interest of Transferor in and to the Accounts and all properties and rights of every kind, nature, and description, tangible or intangible, known or unknown, wherever located and by whomever owned, of Transferor relating to the Accounts, including, without limitation, the following:
(i) All rights and interests under all written and oral contracts, agreements, customer authorizations, purchase and sale orders and contracts related to the Accounts, and other arrangements and commitments of Transferor related to the Accounts (the "Contracts"), including, without limitation, those set forth on SCHEDULE A hereto, but excluding those set forth in Schedule B hereto;
(ii) All accounts receivable of Transferor relating to the Accounts arising on or after the Closing;
(iii) All causes of action, judgments, and claims or demands of whatever kind or description of Transferor arising out of or relating to the Accounts, whether or not asserted, arising on or after the Closing;
(iv) Copies of customer lists and accounts, books, records, files, databases, data and similar items related to any of the foregoing or the Accounts (it being understood and agreed that the originals of the same shall be maintained and used by Transferor solely for regulatory compliance purposes or pursuant to defense or prosecution of legal actions); and
(v) All goodwill and similar intangible assets associated with any of the foregoing. The assets, properties, and rights to be conveyed, transferred, assigned and delivered pursuant to this Section 1.1 are sometimes hereinafter collectively referred to as the "Acquired Assets."
(b) Upon the terms and subject to the conditions set forth in this Agreement, at the Closing, Seller will sell, assign, convey, transfer Transferee hereby agrees (and deliver E*TRADE shall cause Transferee) to Buyer, and Buyer will purchase, assume and acquire from Seller, free and clear of all Encumbrances except for Permitted Encumbrances, Transferor all of Seller’s right, title and interest in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the “Acquired Assets”):
(a) the real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”);
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that Transferor's obligations with respect to vehicles the Contracts arising on and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with Closing. The foregoing liabilities are sometimes hereinafter collectively referred to as the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory Assets"Attached Liabilities."
Appears in 1 contract
Samples: Account Transfer Agreement (Wit Soundview Group Inc)
Acquired Assets. On the terms and subject to the conditions of Closing Date, in accordance with this Agreement, at the Closing, Seller will GIC shall sell, assigntransfer, assign and convey, transfer and deliver to Buyer, and Buyer Newco will purchase, assume all assets of every kind and acquire from Seller, free and clear character of all Encumbrances except for Permitted Encumbrances, all of Seller’s right, title and interest in and to the assets GIC used by Seller to carry out its VA Distribution Business GIC in the Transferred Territory as operation of its business (the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the “"Acquired Assets”):"), such Acquired Assets to include, without limitation:
(a) the That certain real property described on lease of GIC's business location at 1510 Xxxxxxxxx 00xx Xxxxxx Xxxxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx, which lease is attached hereto as Schedule 2.1(a) 3.15 (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned "Real Property”Property Lease");
(b) All of GIC's leases and lease/financing arrangements, including without limitation, the Leases (as defined in Section 3.9 hereof), the Lease Documents (as defined in Section 3.9 hereof), all of Seller’s Easements rights in the Transferred Territory that are primarily related and to the VA Distribution BusinessEquipment (as defined in Section 3.9 hereof), including and all rights in and to the easements listed on Schedule 2.1(b) Scheduled Payments (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”as defined in Section 3.9 hereof);
(c) all All rights in and to the residual values of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred TerritoryLeases;
(d) All accounts receivable, notes receivable and other receivables, as well as all other rights of GIC to payment under the Distribution Facilities;Leases or for the sale or lease of any property or for services rendered, including without limitation those which are not evidenced by instruments or chattel paper, whether or not they have been earned by performance or have been written off or reserved against as a bed debt or doubtful account in any financial statements of the GIC; together with all instruments and all documents of title representing any of the foregoing, all rights in any merchandise or goods which any of the same represent, and all rights, title, security and guarantees in favor of the Seller with respect to any of the foregoing, including without limitation, any right of stoppage in transit (the "Receivables"). The Receivables include all accounts, notes and other receivables of GIC as of May 31, 1996 (as listed on Schedule 3.13) as well as all additions thereto made in the ordinary course of GIC's business between May 31, 1996 and the Closing, but excludes all payments thereon and reductions thereto made in the ordinary course of GIC's business during the latter period which do not violate the terms of this Agreement.
(e) Buyer’s Shared EquipmentAll cash on deposit in GIC's bank accounts, including all uncleared deposits in such accounts, the pettx xxxh of GIC, all temporary cash investments and instruments representing same and all other cash and cash equivalents of GIC;
(f) all InventoriesAll automobiles, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Propertytrucks, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings trailers and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily vehicles described in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on attached Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory Assets.1.1
Appears in 1 contract
Samples: Asset Purchase Agreement (First Sierra Financial Inc)
Acquired Assets. (a) On the terms and subject to the conditions of this Agreement, at the ClosingClosing Date (as hereinafter defined), Seller will shall sell, assign, convey, transfer and deliver to Buyerdeliver, unto Purchaser, and Buyer will purchase, assume its successors and acquire from Sellerassigns forever, free and clear of all Encumbrances except for Permitted EncumbrancesLiens (as defined in Section 5.4 hereof) (other than rights of third parties under contracts assigned pursuant to this Agreement), all right, title, interest and claims in or to the business, properties and assets of Seller or used in Seller's business other than the Excluded Assets (hereinafter defined), together with the goodwill of Seller’s right, title and interest in and to all as the assets used by Seller to carry out its VA Distribution Business in same shall exist on the Transferred Territory as of the Effective Timedate hereof, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added together with any additions thereto after the date hereof pursuant of this Agreement, (hereinafter sometimes together referred to Section 2.6 (collectively, as the “"Acquired Assets”):
(a) the real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”");
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including without limitation the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);following assets:
(i) all Contracts machines, equipment, tools, dies, molds, furniture, fixtures, trucks, automobiles, other vehicles, office supplies, and all other tangible personal property, including without limitation that property (A) described on Schedule l.l(a)(i) hereto, (B) used or dedicated to use in effect as the operations of the date business of this Agreement that relate primarily to Seller, (C) located at the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into premises operated by Seller after (except, with respect to clauses (A) through (C) above, property leased by Seller, which shall be delivered at the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”Closing subject to such leases);
(jii) all customer lists the contracts, promissory notes, leases of personal property and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(kagreements listed on Schedule l.l(a)(ii) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the samehereto, and all rights relating other contracts, leases, agreements, promissory notes and other evidences of indebtedness to Seller (the Customer Deposits (but not the cash related to such deposits"Contracts");
(niii) all intangible assets and all rights, interests and claims of Seller in, to or under all intangible assets (including without limitation Seller's name and any trademarks, trade names or service marks under which Seller has operated, any copyrighted or copyrightable material, patents, patent applications, trade secrets, drawings, designs, formulas, customers' records, customer lists, supplier lists, pricing information, employee records, choses in action, claims), together with any goodwill associated with any of the foregoing, and including without limitation the intangible assets described on Schedule 1.1
(a) (iii) hereto;
(iv) all inventories, raw materials (including inventories and raw materials on order but not received as of the Closing Date), work-in-progress, finished goods ("Inventory");
(v) all claims, causes of demands, judgments, rights, choses in action, rights of recoveryaccounts receivable, rights of set off bills and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreementsnotes receivable, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreementsdocuments, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Recordsinstruments, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territorydeferred items; and
(uvi) all books, records and files of Seller relating to the rights business and obligations related operations of Seller for all periods ending on or before the Closing Date.
(b) From and after the Closing Date, Purchaser shall give to Regulatory AssetsSeller free and unrestricted access to the books, files and records relating to the business and operations of Seller prior to the Closing transferred to Purchaser pursuant to Section l.l(a) hereof, as Seller shall from time to time reasonably request. Any access pursuant to this Section l.l(b) shall be conducted in such a manner as not to interfere unreasonably with the operations of the business of Purchaser after the Closing Date.
Appears in 1 contract
Acquired Assets. On Subject to the entry of the Sale Order by the Bankruptcy Court and the exclusions set forth in Section 1.2, and in accordance with the terms and subject to the conditions of this Agreement, at the Closing, Seller will sell, assign, convey, transfer Sellers agree to sell and deliver assign to Buyer, and Buyer will agrees to purchase, assume and acquire and/or take assignment from Seller, free and clear of all Encumbrances except for Permitted EncumbrancesSellers, all of Seller’s Sellers’ right, title and interest in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 following (collectively, the “Acquired Assets”):), including as more specifically described in Exhibits A, B, C, D and E attached hereto, free and clear of all Liens, Liabilities and encumbrances:
(a) all of Sellers’ rights under each of the real property described contracts, agreements or arrangements, written or oral (each, a “Contract”) to which the MPV Companies are signatories, if any, as set forth on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) Exhibit A hereto (collectively, the “Owned Real PropertyMPV Contracts”);
(b) all the mortgages in favor of Seller’s Easements in the Transferred Territory that are primarily MPV, Inc., MPV Netherlands C.V., MPV Netherlands Cooperatief U.A. and MPV Netherlands B.V. and any related to the VA Distribution Businessloans, including the easements listed each as set forth on Schedule 2.1(b) Exhibit B (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred EasementsMortgages”);
(c) all of the substationsContracts to which LMS Shipmanagement, control buildingsInc., service centers Marco Shipping Company (PTE) Ltd., and other buildingsGulf South Shipping PTE Ltd are signatories, fixtures set forth on Exhibit C, hereto (collectively, the “Non-MPV Contracts”), which, to the extent they are executory, shall be assumed by the Sellers and improvements located on assigned to the Owned Real Property or a Transferred EasementBuyer and, unless such substationto the extent they are not executory, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of shall be acquired by the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred TerritoryBuyer;
(d) the Distribution FacilitiesContracts set forth on Exhibit D hereto (collectively, the “NWJ Contracts” and, together with the Mortgages, the MPV Contracts and the Non-MPV Contracts, the “Assigned Contracts”), which, to the extent they are executory, shall be assumed by the Sellers and assigned to the Buyer and, to the extent they are not executory, shall be acquired by the Buyer;
(e) Buyer’s Shared Equipmentall of Sellers’ rights, title and interest in and to the assets set forth on Exhibit E;
(f) to the extent transferable using commercially reasonable efforts, all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) rights of Sellers under or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereofall warranties, representations and guarantees made by suppliers, manufacturers and contractors primarily relating to products sold, or services provided, to Sellers in respect of the Acquired Assets other than any warranties, representations and guarantees pertaining to any Excluded Assets (as defined below);
(g) except for all rights of Sellers under non-disclosure or confidentiality, non-compete or non-solicitation agreements with employees and agents of Sellers or with third parties primarily relating to the Excluded Tangible Personal Property, all other machinery (mobile Business or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g(or any portion thereof);
(h) subject all of Sellers’ rights to Section 2.5, all rights refunds of Seller any Taxes (as lessee under the leases set forth on Schedule 2.1(hdefined below) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h)constitute Assumed Liabilities;
(i) all Contracts in effect as of the date of this Agreement that relate primarily deposits (including, with respect to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS informationcustomer deposits and security deposits (whether maintained in escrow or otherwise) for rent, books electricity, telephone or otherwise) and records; meter reading prepaid charges and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession expenses of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, Sellers that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating exclusively to the Acquired Assets;
(mj) all Accounts Receivable and Unbilled Revenueexcept as set forth on Schedule 1.1(j), together with all rights (including rights under insurance policies), Claims (as defined in section 101(5) of the Bankruptcy Code) or causes of action primarily arising from or related to enforce, execute the Acquired Assets and facts or circumstances occurring or existing on or collect the same, and all rights relating prior to the Customer Deposits (but not the cash related to such depositsClosing Date, other than Claims among Sellers as described in Section 1.2(m);
(nk) except as set forth on Schedule 1.1(k), all claimsrights, causes of actionrecoveries, rights of recovery, rights of set off refunds and rights of recoupment set-off and Claims and causes of Seller action against third parties primarily arising from or to the extent relating to the Assumed ObligationsAcquired Assets and facts or circumstances occurring or existing on or prior to the Closing Date;
(ol) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreementsfiles, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreementsdocuments, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Recordsinstruments, notices, papers, books, records, opinions and, to the extent permitted by Law;
in Sellers’ possession, contents of files (swhether in paper, digital or other tangible or intangible form) primarily relating to the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits the “Transferred Books and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred TerritoryRecords”); and
(um) all goodwill of, and other intangible rights of Sellers in, the rights and obligations related to Regulatory Acquired Assets.
Appears in 1 contract
Samples: Asset Purchase Agreement (International Shipholding Corp)
Acquired Assets. On the terms and subject to the conditions of set forth in this Agreement, at upon the Closing, Seller will sell, assign, convey, transfer and deliver to Buyer, and Buyer will purchase, assume Purchaser and/or a Purchaser Designee shall purchase and acquire from Seller, free and clear of all Encumbrances except for Permitted EncumbrancesSeller shall sell, convey, assign or transfer, as applicable, and deliver to Purchaser and/or a Purchaser Designee, all of Seller’s right, title and interest in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective TimeClosing in all properties, except for the assets expressly excluded below or excluded in Section 2.2assets, including the assets more specifically described below rights and added after the date hereof pursuant to Section 2.6 (collectively, the “Acquired Assets”):
(a) the real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”);
(b) all interests of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territoryany kind, whether located on Owned Real Property tangible or a Transferred Easementintangible, real or personal, and wherever located, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventoriesowned, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Propertyused, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in connection with the VA Distribution Business in Business, except for the Transferred Territory Excluded Assets (the “Tangible Personal PropertyAcquired Assets”), providedfree and clear of all Liens other than Permitted Liens, that with respect to vehicles and trailers owned by Seller, including the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);following:
(i) all Contracts in effect as of the date of this Agreement that relate primarily related to the VA Distribution Business in the Transferred Territoryto which Seller is a party and all rights of Seller thereunder, including operating agreements, franchise agreements, customer contracts, electrical but not limited to the Amazon Business Services Agreements and terms of service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, poleagreements for WalMart and eBay’s e-attachment agreements, joint-use agreementscommerce platforms set forth on Schedule 2.1(a)(i) and any Contracts related to the sale of products in any physical retail space, and including any excluding the Excluded Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Acquired Contracts”);
(jii) all customer lists and customer information databases (Intellectual Property, including customer load data); vendor lists; operational and performance data for the Acquired AssetsMarks, GIS informationE-Commerce Assets and other Intellectual Property set forth on Schedule 2.1(a)(ii) and such Intellectual Property otherwise used in connection with the Specified Inventory;
(iii) the Acquired Amazon Accounts;
(iv) all lists, books records and records; meter reading other information pertaining to accounts and service data; operatingreferral sources, safety all lists, records and maintenance records; warranty information; engineering designsother information pertaining to vendors, planssuppliers, blueprints licensors and as-built plans and specifications and procedures; system drawings; ledgerscustomers, filesall advertising, documents, studies, reports, creative materials, advertising marketing and promotional materials, and other writtenall drawings, printed or electronic materialsdiagrams, reports, studies, plans, books, ledgers, files and business and accounting records of every kind (including all financial, business and marketing plans), in each casecase whether evidenced in writing, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession electronic data, computer software or in the possession of any third parties within Seller’s reasonable control or influenceotherwise;
(kv) all Permits finished goods inventory, goods in transit, returned goods and other goods available for sale, excluding for the avoidance of Seller, doubt all other inventory (including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(lraw materials and work-in-process inventory) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits having an SKU (but not excluding the cash related to such depositsExcluded SKU Inventory), in each case as set forth on the Inventory Statement (“Specified Inventory”);
(nvi) all credits, prepaid expenses and security deposits related to the Specified Inventory, including those set forth on Schedule 2.1(a)(vi);
(vii) all claims, refunds, credits, causes of action, rights of recovery, rights of set off recovery and rights of recoupment set-off of Seller against third parties to the extent relating to the Assumed Obligations;
any kind (o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily other than those related to the VA Distribution Business in the Transferred TerritoryExcluded Assets or Excluded Liabilities); and
(uviii) all goodwill associated with the rights Business or any of the Acquired Assets. To the extent any assets or property (including any Intellectual Property) owned by an Affiliate of Seller are used in, held for use in, or are reasonably necessary for the continued conduct of the Business (other than the Excluded Assets), they shall be included within the defined term “Acquired Assets” for purposes hereof if they would have been so included had they been owned by Seller, and obligations related Seller shall cause such Affiliate, to Regulatory Assetsconvey such assets and property to Purchaser free and clear of all Liens other than Permitted Liens for no additional consideration.
Appears in 1 contract
Samples: Asset Purchase Agreement (Mohawk Group Holdings, Inc.)
Acquired Assets. (a) On the terms and subject Closing Date (as defined in SECTION 1.6 below), the Sellers agree to the conditions of this Agreement, at the Closing, Seller will sell, assign, convey, transfer and deliver to Buyer, and Buyer will purchase, assume and acquire from SellerOldcastle MMG, free and clear of all Encumbrances except for the Bankruptcy Permitted EncumbrancesEncumbrances (as defined below), against payment therefor as provided in SECTION 1.3, all of Seller’s the rights, title and interest that the Sellers possess and have the right to transfer in and to all of the Assets of every kind used in, related to or necessary for the conduct of the Western Operations or otherwise owned or used by the Sellers in the Western Operations and the Sellers also agree to sell, assign, convey, transfer and deliver to Oldcastle Southeast, free and clear of all Encumbrances except for the Bankruptcy Permitted Encumbrances (as defined below), against payment therefor as provided in SECTION 1.3, all of the rights, title and interest that the Sellers possess and have the right to transfer in and to all of the Assets of every kind used in, related to or necessary for the conduct of the Southeastern Operations or otherwise owned or used by the Sellers in the Southeastern Operations (except for those Excluded Assets set forth in SECTION 1.2 hereof), including, without limitation, the following assets (all such assets and properties of the Sellers are collectively referred to hereinafter as the "Acquired Assets"):
(i) all fixtures, vehicles, machinery, equipment, rolling stock, tools, furniture, pallets, phones, office supplies and other items of personal property (collectively, the "Personal Property");
(ii) all Owned Property (as defined in SECTION 4.6.1(A));
(iii) all right, title and interest in and to the assets used by Seller to carry out its VA Distribution Business all Property Leases (as defined in the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the “Acquired Assets”):
(a) the real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”);
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory AssetsSECTION 4.6.
Appears in 1 contract
Samples: Agreement of Purchase and Sale of Assets (U S Aggregates Inc)
Acquired Assets. On Upon the terms and subject to the conditions of set forth in this Agreement, at the ClosingPurchaser will purchase from Seller, Seller and Seller, will sell, transfer, assign, convey, transfer and deliver to BuyerPurchaser, on the Closing Date, all of the assets of Seller relating to, and Buyer will purchaseused or held for use in, assume and acquire from Selleror arising out of the Business (collectively, free and clear of all Encumbrances except for Permitted Encumbrancesthe “Acquired Assets”), including all of Seller’s right, title and interest in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as described below, free and clear of the Effective Timeall liens, except for the assets expressly excluded below or excluded in Section 2.2claims, including the assets more specifically described below security interests, charges and added after the date hereof pursuant to Section 2.6 (collectively, the “Acquired Assets”):encumbrances other than Permitted Encumbrances:
(a) all furniture, fixtures, leasehold improvements, machinery, equipment, vehicles and other property used in the real property described on Schedule 2.1(a) operation of the Business (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”idle equipment);
(b) all of Seller’s Easements in the Transferred Territory real property (collectively, “Real Property”) and all real property leases (collectively, “Property Leases”), each as set forth on Schedule 1.1(b) (excluding any locations set forth on Schedule 1.1(b) that are primarily related excluded from the Acquired Assets), used by Seller to conduct the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) Business (collectively, the “Transferred EasementsBusiness Locations” and each a “Store”);
(c) all equipment leases set forth on Schedule 1.1(c) for equipment leased by Seller and used in connection with the operation of the substationsBusiness at the Business Locations (collectively, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared LocationEquipment Leases”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) all customer accounts receivable, work in process and “clothes on the Distribution Facilitiesline” generated by the Business and existing on the Closing Date;
(e) Buyer’s Shared Equipmentall prepaid advances including security deposits under the Property Leases;
(f) all Inventoriesbooks and records, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1notes and other data pertaining to the Business (or, where appropriate, copies thereof) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereofother than Seller’s corporate records, personnel files, financial statements and records, tax returns and records;
(g) except for to the Excluded Tangible Personal Propertyextent transferable, all other machinery (mobile licenses, permits, approvals, and qualifications issued to Seller by any governmental unit, agency, body, or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that instrumentality with respect to vehicles and trailers owned by the Seller, ’s operation of the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g)Business;
(h) subject to Section 2.5all inventory and supplies located at each Business Location (collectively, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment LeasesInventory”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts right and interest of Seller in effect as of the date of this Agreement that relate primarily and to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer all service contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use repair agreements, and including similar agreements and understandings with any Contracts that relate primarily to and all suppliers of equipment and goods sold or leased in connection with the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 set forth on Schedule 1.1(i) (collectively, the “Transferred Supplier Contracts”);
(j) all customer lists goodwill and customer information databases (including customer load data); vendor lists; operational and performance data for going concern value associated with the Acquired Assets, GIS information, books Assets and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influenceBusiness;
(k) all Permits the starting cash on hand at the Business Locations (“Store Cash”) at the opening of Seller, including Transferable Permits, that relate primarily to business on the VA Distribution Business in the Transferred TerritoryClosing Date which shall be described on Schedule 1.1(k);
(l) all unexpired warranties intangible personal property owned or held by Seller and used or useful in connection with the Business, but in all cases only to the extent of Seller’s interest therein and only to the extent transferable, together with all Books and Records pertaining exclusively to the Business (collectively, the “Intangible Property”), including, without limitation, the name “Xxxxxxx Cleaners,” as used in the State of Indiana ( the “Trade Name”), domain names, websites and the items identified on Exhibit A hereto. Notwithstanding the sale and transfer to Purchaser of the Trade Name, Seller or its assignee shall have the right to use the Trade Name in connection with its store locations not sold to Purchaser for a period of three (3) months from Closing. As used in this Agreement, Intangible Property shall in all events exclude (i) any materials containing privileged communications or information about employees, disclosure of which would violate an employee’s reasonable expectation of privacy and any other materials which are subject to attorney-client or any other privilege, and (ii) Seller’s corporate books and records relating to the Acquired Assets;its organization and existence; and
(m) all Accounts Receivable and Unbilled Revenueany deposits or, together subject to Section 6.3, letters of credit that have been put in place for environmental concerns with all rights regard to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share any of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory AssetsStores.
Appears in 1 contract
Acquired Assets. On (a) Subject to the terms and subject to the conditions set forth in this Agreement and on the basis of this Agreementthe representations and warranties herein, at the ClosingSeller agrees to, Seller will sell, assign, convey, transfer transfer, assign and deliver to the Buyer, and the Buyer will agrees to purchase, assume receive and acquire accept, as applicable, from Seller, free and clear of all Encumbrances except for Permitted Encumbrances, the Seller all of the Seller’s right, title and interest in and to the assets and properties of every kind, character and description, used by Seller to carry out its VA Distribution Business in or for the Transferred Territory as benefit of the Effective TimeBusiness, except for the assets expressly excluded below whether tangible, intangible, real, personal or excluded mixed, set forth in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the “Acquired Assets”):
(a) the real property described on Schedule 2.1(a) hereto (including the control buildings and the other buildings and related improvements located thereon) (collectively, collectively referred to hereinafter as the “Owned Real PropertyAssets”) other than the Excluded Assets (as defined below);. Schedule 2.1(a) is referred to herein as the “Asset Schedule”.
(b) all Without limitation of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectivelyforegoing, the “Transferred Easements”);
(c) all Assets shall include, in each case in respect of the substationsSeller, control buildingsall the tangible property, service centers and other buildingsfurniture, fixtures and improvements located equipment, Fifty Percent (50%) cash on hand at the Owned Real Property or a Transferred EasementClosing, unless such substation, building, fixture or improvement is Fifty Percent (i50%) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
Accounts Receivable (d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating transferable under applicable Law), notes receivable (to equipment or vehicles primarily the extent listed on the Asset Schedule), inventory (including office supplies), tenant improvements (to the extent related to the VA Distribution Business in the Transferred Territory; provideda lease which is an Assigned Contract), that with respect to vehicles goodwill, software, Intellectual Property (other than as set out as an Excluded Asset), Prepaid Items, Assigned Contracts, Assigned Personal Property Leases, books and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
records (i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, all patient lists to the extent primarily related transferable under applicable Law, but excluding any patient medical records and files to the VA Distribution Business in extent required to be retained by the Transferred Territory Seller and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Sellercommunications which are subject to attorney-client privilege), including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties any Seller policies and procedures relating to the Acquired Assets;
(m) Business, telephone and email addresses, all Accounts Receivable Permits and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes certificates of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties need to the extent relating transferable to the Assumed Obligations;
(o) Buyer, all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which benefits, proceeds and other amounts payable under any Seller is entitled as an LSE for the Transferred Territory pursuant policy of insurance to the PJM Agreements, including extent (i) all Auction Revenue Rights to which Seller is entitled that such amounts are allocable to the Transferred Territory and payable for losses suffered or payable by Buyer or (ii) all Financial Transmission Rights such amounts are payable with respect to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller an Assumed Liability or other liability included in the portion calculation of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory AssetsWorking Capital.
Appears in 1 contract
Samples: Asset Purchase Agreement (Generex Biotechnology Corp)
Acquired Assets. On Subject to the terms and subject to the conditions of this Agreement, at the Closing, Seller will agrees to sell, assign, convey, transfer assign and deliver to Buyer, and Buyer will purchase, assume agrees to purchase and acquire from Seller, free and clear as of all Encumbrances except for Permitted Encumbrances7:00 a.m. (Central Time) on January 1, 2011 (the “Effective Time”), all of Seller’s right, title and interest in and to the assets used by Seller to carry out its VA Distribution Business in following, less and except the Transferred Territory Excluded Assets, as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 defined hereafter (collectively, the “Acquired Assets”):
(aA) the real property The oil and gas leases described on Schedule 2.1(aExhibit 1.1(A) (including all working interests, royalty interests, overriding royalty interests, net profits interests, production payments, reversionary rights and all other interests therein, whether described or not), insofar, and only insofar as such leases cover the control buildings lands and, where indicated, depths described on Exhibit 1.1(A) (the “Lands”) (such leases, insofar as they cover the Lands, being referred to herein as the “Leases”);
(B) the facilities and lands described on Exhibit 1.1(B) (the “Properties”);
(C) All xxxxx located on or associated with the Leases or Lands (whether producing, not producing or abandoned) (the “Xxxxx”), including, without limitation, the Xxxxx identified on Exhibit 1.1(C);
(D) To the extent assignable or transferable, all easements, rights of way, licenses, permits, servitudes and other buildings rights, privileges, benefits and related improvements located thereonpowers to the extent used in connection with the operation of the Leases, Units (hereinafter defined), Xxxxx, or Related Assets (hereinafter defined) (collectively, the “Owned Real PropertyEasements”), including, without limitation, the Easements identified on Exhibit 1.1(D);
(E) All rights, obligations and interests in any unit or pooled area in which the Leases are included, including all interests in any Xxxxx within the Units associated with the Leases, together with the rights in and to all existing and effective unitization, pooling and communitization agreements, declarations and orders, and the properties covered and the Units created thereby, to the extent they relate to or affect any of the Leases, Lands, Properties and Xxxxx (the “Units”);
(bF) all All of Seller’s Easements in the Transferred Territory oil and gas and associated hydrocarbons in, on and under or that are primarily related may be produced from or otherwise attributable to the VA Distribution BusinessLands, including the easements listed on Schedule 2.1(bLeases, the Units or the Properties (“Hydrocarbons”) from and after the Effective Time;
(including G) To the control buildings extent assignable and applicable to the Assets, all hydrocarbon purchase and sale agreements, farmin agreements, farmout agreements, bottom hole agreements, acreage contribution agreements, operating agreements, unit agreements, processing agreements, options, leases of equipment or facilities, joint venture agreements, pooling agreements, transportation agreements, rights-of-way and other buildings contracts, agreements and related improvements located thereon) rights, which are owned by Seller, in whole or in part, and are appurtenant to the Leases, Lands, Xxxxx, Units or Properties, or used in connection with the sale, distribution or disposal of Hydrocarbons or water from the Leases, Lands, Xxxxx, Units or Properties (collectively, the “Transferred EasementsContracts”), including, without limitation, the Contracts identified on Exhibit 1.1(G);
(cH) all of the substationsAll well equipment, control platforms, caissons and other such structures, pipelines, flowlines, gathering systems, plants, piping, buildings, service centers treatment facilities, disposal facilities, injection facilities, compressors, casing, tanks, tubing, pumps, pumping units, motors, fixtures, machinery and other buildings, fixtures and improvements equipment located in or on the Owned Real Property Leases, Lands, Xxxxx, Units or a Transferred Easement, unless such substation, building, fixture Properties or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that operation thereof which are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, in whole or in part (the Acquired “Related Assets”), including, without limitation, the Related Assets will only include those vehicles and trailers set forth identified on Schedule 2.1(gExhibit 1.1(H);
(hI) subject to Section 2.5To the extent assignable, all rights of Seller governmental permits, licenses and authorizations, as lessee under well as any applications for the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily same, related to the VA Distribution Business in Leases, Lands, Xxxxx, Units, Properties, Contracts or Related Assets, or the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h)use thereof;
(iJ) all Contracts All vehicles and vessels used in effect as the operation of the date Assets, including without limitation the vehicles and vessels listed on Exhibit 1.1(J); and
(K) All of this Agreement that relate primarily Seller’s files, records and data relating to the VA Distribution Business items described in the Transferred Territorysubsections (A) through (J) above, including, without limitation, all lease, well, division order and other title records (including operating agreementstitle curative documents); surveys, franchise agreementsmaps and drawings; contracts; correspondence; regulatory, customer contractsgeological records and information; production records, electrical service agreementselectric logs, interconnect agreementscore data, interchange agreementspressure data, borderline agreementsdecline curves, encroachment agreementsgraphical production curves and all related matters and construction documents; and Seller’s proprietary geophysical and seismic records and interpretations of same, pole-attachment agreementsdata and related information, joint-use agreementsif any, and including any Contracts that relate primarily is not subject to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 contractual restrictions on disclosure or transfer (collectively, the “Transferred ContractsRecords”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory Assets.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Tetra Technologies Inc)
Acquired Assets. On the terms and subject to the conditions of this Agreement, at At the Closing, Seller will sellis selling, assignassigning, conveytransferring, transfer conveying and deliver delivering to Buyer, and Buyer will purchaseis purchasing, assume acquiring and acquire accepting from Seller, free and clear of all Encumbrances except for Permitted Encumbrances, all of Seller’s entire right, title and interest in and to substantially all of the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective TimeSeller, except for the assets expressly excluded below whether tangible or excluded in Section 2.2intangible, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 real or personal (collectively, the “Acquired Assets”):), which include, without limitation, the following:
(aA) the real property described contracts listed on Schedule 2.1(a) attached Exhibit B (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real PropertyAssigned Contracts”);
(bB) Seller’s rights under the Lease relating to or for the Leased Real Property listed and described on Exhibit B, together with all Improvements thereon, and all easements, rights of way and other rights, interests and appurtenances of Seller therein or thereunto pertaining;
(C) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements Intellectual Property listed on Schedule 2.1(b) Exhibit B, along with all other Intellectual Property and other intangible personal property that has been used, is used or is held for use in connection with the Business (including together with the control buildings Seller Products and the other buildings and related improvements located thereon) (collectivelySeller Software, the “Transferred EasementsBusiness IP”);) including, without limitation: (1) the rights to bring actions for past, present and future infringement, dilution, misappropriation or unauthorized use of the Business IP, injury to goodwill associated with the use of any of the Business IP, and unfair competition or trade practices violations associated with the use of any of the Business IP in any country or other geographic area in the world; and (2) the rights to receive all proceeds from any of the foregoing, including licenses, royalties income, payments, claims, damages and proceeds of any such suit.
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(dD) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventoriesequipment, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings spare parts, accessories, furniture, test equipment and other tangible personal property that, in each case, are not classified as inventory under GAAP and that are fixed assets owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”)listed on Exhibit B;
(jE) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assetsrights of Seller under any warranty or guarantee by any manufacturer, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and supplier or other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession transferor of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(mF) all Accounts Receivable accounts, notes, and Unbilled Revenueother receivables in favor of Seller arising from the operation of the Business and existing at the time of the Closing, together with all rights to enforcecollateral security therefor and the proceeds thereof including without limitation those receivables listed on attached Exhibit B (collectively, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits“Purchased Accounts Receivable”);
(nG) all inventory (including raw materials, works in process and finished goods), packaging materials and supplies of Seller, including without limitation the inventory listed on attached Exhibit B (collectively, the “Inventory”);
(H) all rights of Seller under any franchises, approvals, permits, licenses, orders, registrations, certificates, variances, and similar rights obtained from governments and governmental agencies that are necessary for the Business and are identified on Exhibit B;
(I) all sales records, purchase records, customer lists, supplier lists, advertising, sales and promotional materials, production records, customer credit information, domain name usernames and passwords, source codes and object codes of any software, flow charts, programmer information, error reports, virus reports, customer complaints, internal memoranda and correspondence, and other records relating to the Acquired Assets or used in the Business; all Lease and Leased Real Property data relating to the Acquired Assets or used in the Business; all records regarding governmental examinations and clearances relating to the Acquired Assets or used in the Business; and all personnel records for any current or former employee of Seller;
(J) all rights to any proceeds due to Seller from the State of Connecticut or any other governmental authority relating to any outstanding tax credits (collectively, the “Tax Credits”) due to Seller;
(K) all goodwill and other general intangibles of Seller; and
(L) all rights of Seller under any claims, deposits, prepayments, refunds, causes of action, choses in action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent (including any such items relating to the Assumed Obligations;
(o) all Intellectual Property described payment of Taxes). Except as specifically provided in Schedule 2.1(o) (this Agreement, the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that Assets are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned being transferred by Seller pursuant to Buyer at the Power Purchase Agreements;
(q) rights to serve the existing certified service territory Closing in accordance with this Agreement and free and clear of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory AssetsLiens.
Appears in 1 contract
Acquired Assets. On Subject to the terms and subject to the conditions of set forth in this Agreement, at the ClosingClosing referred to in Section 4 hereof, the Seller will shall sell, assign, convey, transfer title to and deliver to the Buyer, and the Buyer will shall purchase, assume acquire title to and acquire from take assignment and delivery of all of the following assets of the Seller (all of such assets included in this Section 1.1 are hereinafter referred to collectively as the "Acquired Assets"):
(a) all inventories, including raw materials, work in process and finished goods, either which are owned (in whole or in part) by the Seller, free or in which the Seller has rights, on the Closing Date (as defined in Section 4.1 hereof) and clear of are used by the Seller in connection with the Purchased Business (collectively, the "Inventories"), as more particularly described on the Closing Inventory Schedule to be delivered by the Seller to the Buyer pursuant to Section 4.4 hereof, but excluding the Excluded Assets, referred to in Schedule 1.2;
(b) all Encumbrances except for Permitted Encumbrancesmachinery, equipment, computers, computer peripherals and other hardware, phone systems, cables and wiring, furniture, fixtures, tools, spare parts, supplies, materials and other personal property used in the Purchased Business, including those which are described on Schedule 1.1(b) hereto (collectively, the "Equipment");
(c) all of Seller’s 's rights as lessee in and to the real property lease dated 01.06.1984 (the "Lease")between Seller and Rheinbeton ("Landlord") for the lease of the Company's main facility in Xxxxxx, Germany;
(d) all trade accounts receivable (billed and unbilled), notes receivable and miscellaneous receivables of the Purchased Business outstanding at Closing listed in Schedule 1.1(d) (but excluding the receivable due from the Turkish Joint Venture (as defined in Section 4.4 (c)(x) below) and loans due from related parties);
(e) all of the Seller's right, title and interest in and to the assets its current corporate name, and any other related trade names, "Von der Bruggen" "Vdb" and "Vdb/hi-tex", and any and all other trade name or names now or previously used by Seller to carry out the Company or its VA Distribution Business in the Transferred Territory as predecessors (or by which any of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the “Acquired Assets”):
(a) the real property described on Schedule 2.1(athem were known) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”collectively "Trade Names");
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventoriesof the Seller's title to, but excluding those Inventories not located at a facility listed interest in, and rights under, the contracts, leases, and agreements described on Schedule 2.1(c)(11.1(f) hereto, for the purchase or 2.1(c)(2sale of utilities, equipment, goods, materials and services for use in connection with the Purchased Business (the contracts and agreements referred to in this Section 1.1(f) or deemed being referred to be included herein, collectively, as an Acquired Asset pursuant to Section 2.6(c) hereofthe "Other Contracts");
(g) except for all of the Excluded Tangible Personal PropertySeller's title to, all other machinery interest in, and rights under, the purchase orders of customers issued to the Purchased Business (mobile or otherwise"Customer Purchase Orders") and purchase orders of the Purchased Business issued to vendors ("Vdb Purchase Orders"), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) case to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth listed on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory Assets.1.1
Appears in 1 contract
Acquired Assets. On the terms and subject to the terms and conditions of this Agreement, at the Closing, the Buyer shall purchase from the Seller, and the Seller will shall sell, transfer, assign, convey, transfer convey and deliver to the Buyer, all right, title and Buyer will purchaseinterest of the Seller in and to all of the tangible and intangible assets, assume business, goodwill and acquire from Sellerrights of the Seller used in, arising out of, or related to, the Business, other than the Excluded Assets (all such assets, business, goodwill and rights being purchased hereunder are collectively referred to as the “Acquired Assets”), as the same shall exist immediately prior to the Closing, free and clear of all Encumbrances except for Liens (other than Permitted EncumbrancesLiens), all of Seller’s rightincluding, title and interest in and without limitation, the following (to the assets extent used by Seller to carry in, arising out its VA Distribution Business in the Transferred Territory as of the Effective Timeof, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectivelyrelated to, the “Acquired Assets”Business):
(a) the real property described raw materials, components, and supplies, work-in-process, processed or finished goods and other items of inventory, and all packaging, wrapping, shipping containers and other parts, wherever located, specifically including any inventory held by third parties for demonstration purposes or on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”)consignment;
(b) all machinery, equipment, tooling, dies and molds (whether located at the facilities of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution BusinessSeller or at other locations), including the easements furniture, fixtures, leasehold improvements, vehicles and other tangible personal property listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”1.1(b);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Intellectual Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included set forth on Schedule 2.2(a1.1(c); Schedule 2.1(c)(1) lists , the goodwill associated therewith, licenses and sublicenses granted or obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the Laws of all of jurisdictions, and all rights granted to the service centers and substations Buyer under the Intellectual Property License Agreement (the “Ultrasonics Intellectual Property”), subject to the limitations set forth in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred TerritorySection 2.4;
(d) to the Distribution Facilitiesextent that the same are assignable, agreements, contracts, unfulfilled sales orders with customers listed on Schedule 1.1(d), unfulfilled purchase orders entered into with suppliers listed on Schedule 1.1(d), licenses, commitments, plans, instruments, arrangements, understandings and proposals, documents and leases (whether of real or personal property) (including, without limitation, any such agreements, contracts, licenses, commitments, documents and leases listed on Schedule 5.13), including all amendments and supplements thereto (collectively, the “Contracts”), subject to the limitations set forth in Section 2.4;
(e) Buyer’s Shared Equipmentall payments, deposits (including, without limitation, customer deposits or prepayments on unfulfilled sales orders) and prepaid expenses set forth on Schedule 1.1(e);
(f) all Inventoriesclaims, but excluding those Inventories not located at a facility listed choses-in-action, warranties, refunds, rights of recovery, rights of set-off and rights of recoupment set forth on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof1.1(f);
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g)[intentionally omitted];
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to that the VA Distribution Business in the Transferred Territory; providedsame are assignable, that with respect to vehicles and trailers subject to an Equipment Leaseall Permits, only including those vehicles and trailers set forth Permits which are listed on Schedule 2.1(h)5.8;
(i) all Contracts in effect as of the date of this Agreement that relate primarily rights to receive mail, email, faxes and other communications addressed to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, Seller and including any Contracts that relate primarily relating to the VA Distribution Business in (including communications from customers, suppliers, distributors, agents and others and payments with respect to the Transferred Territory that are entered into by Seller after Acquired Assets), all of which shall be forwarded to the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”)Buyer;
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documentsdocuments and correspondence, lists, drawings, specifications, xxxx of materials, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic written materials, in each case, relating to the extent primarily related to Business, including all electronic and printed copies of each of the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influenceforegoing;
(k) all Permits of Seller, including Transferable Permits, that relate primarily rights to the VA Distribution Business in name “Misonix” granted by the Transferred TerritoryIntellectual Property License Agreement;
(l) all unexpired warranties relating to the Acquired Assets;domain names listed on Schedule 1.1(l); and
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute other Assets included on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such depositsSchedule 1.1(m);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory Assets.
Appears in 1 contract
Acquired Assets. On Subject to the terms and subject to the conditions of set forth in this Agreement, at the ClosingClosing referred to in Section 4 hereof, Seller will shall sell, assign, convey, transfer and deliver to the Buyer (or, at Buyer’s request delivered to Seller in writing no later than 10 business days prior to the Closing, to a wholly owned Israeli subsidiary of Buyer) and the Buyer shall purchase, acquire and take assignment and delivery of, all of the assets and rights of Seller relating to, or used in connection with, the Business (all of which assets and rights are hereinafter referred to collectively as the “Acquired Assets”), as set forth in Exhibit A attached hereto.
(a) Seller represents and warrants to Buyer that, upon Buyer’s purchase of the Acquired Assets in accordance with this Agreement, Buyer will purchase, assume and acquire from Seller, take the Acquired Assets free and clear of all Encumbrances encumbrances or rights and claims of any third party, except for Permitted Encumbrancesfor: (i) the Office of the Chief Scientist of the Israeli Ministry of Trade, all Industry and Labor (the “OCS”), and (ii) the Investment Center of Seller’s rightthe Israeli Ministry of Trade, title Industry and interest Labor (the “Investment Center”), in each case as set forth on Schedule 1.2(i). The amounts paid to date and to the assets used amounts remaining outstanding as royalties by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the “Acquired Assets”):
(a) the real property described OCS are set forth on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”1.2(i);.
(b) all On the date hereof, Buyer shall execute and deliver to Seller for filing with the OCS (1) a “Transfer of Seller’s Easements Rights and Obligations Agreement” with the OCS, in the Transferred Territory that are primarily form attached as Schedule 1.2(ii) hereto, pursuant to which Buyer shall fully assume the payment to the OCS of royalties under OCS programs related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory Assets (the “Tangible Personal PropertyTransfer of Rights Form”); and (2) an undertaking towards the OCS in the OCS standard form attached hereto as Schedule 1.2(iii), provided, that pursuant to which Buyer undertakes to observe and comply with respect provisions of Israeli law relating to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights transfer of Seller as lessee under the leases set forth on Schedule 2.1(h) intellectual property (the “Equipment LeasesUndertaking Form”) ). Buyer acknowledges that execution of the Undertaking Form is a condition to the extent relating to equipment or vehicles primarily related OCS’s consent to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory Assetstransactions contemplated herein.
Appears in 1 contract
Samples: Asset Purchase Agreement (Bos Better Online Solutions LTD)
Acquired Assets. On the terms and subject Closing Date, the Seller agrees to the conditions of this Agreement, at the Closing, Seller will sell, assign, convey, transfer and deliver to Buyer, and Buyer will purchase, assume and acquire from Seller, free and clear of all Encumbrances except for Permitted Encumbrances, all of Seller’s rightits rights, title title, and interest in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as all of the Effective Timetangible and intangible assets of the Seller’s specified herein, except for the and Buyer agrees to acquire such assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, collectively the “Acquired Assets”):), which shall consist of the following:
(a) the real property described Intellectual Property used or useful in the Acquired Business, and all goodwill associated therewith, and rights to protection of interests therein under the laws of all jurisdictions, including, without limitation, the software, product names, Domain Names and other Intellectual Property listed on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”2.3(a);
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements Contracts listed on Schedule 2.1(b2.3(b) (including and all of the control buildings rights thereunder; for purposes of clarity, it is acknowledged and agreed that notwithstanding the other buildings Seller’s transfer to the Buyer of various Contracts requiring the provision of maintenance and related improvements located thereon) (collectivelysupport services which are reflected as “Current Liabilities” on Lines 2310 and 2320 of the Seller’s general ledger included in the Financial Statements, the “Transferred Easements”)Seller is retaining all rights to the cash previously received by the Seller in connection with such maintenance and support services;
(c) all claims, deposits, prepayments solely as they may relate to the undelivered consulting days of the substationsSeller referenced in Section 2.4(c), control buildingsrefunds, service centers causes of action, chooses in action, rights of recovery, rights of set off, and other buildingsrights of recoupment relating to the Acquired Assets, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included including without limitation those listed on Schedule 2.2(a2.3(c); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution FacilitiesSeller’s Accounts Receivable listed on Schedule 2.1(b), provided that if any accounts receivable outstanding on the Closing Date shall not have been collected by Buyer within ninety (90) days thereafter despite Buyer’s commercially reasonable efforts, then Buyer may, at any time prior to the date one hundred twenty (120) days following the Closing, assign such accounts receivable back to Seller whereupon Seller shall promptly refund to Buyer the full dollar value thereof. If after such assignment Buyer shall receive any funds in respect of any such reassigned accounts receivable, Buyer shall promptly remit such amounts to Seller;
(e) Buyer’s Shared Equipmentto the extent assignable, franchises, approvals, permits, licenses, orders, registrations, certificates, variances, and similar rights obtained from governments and governmental agencies relating to the Acquired Business;
(f) all Inventoriessales records and documentation, correspondence, lists (including but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed limited to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwisecustomer lists), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reportsproduct specifications, creative materials, advertising and promotional materials, studies, reports, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties written materials relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred TerritoryBusiness; and
(ug) the rights and obligations tangible personal property related to Regulatory Assetsthe Acquired Business as listed on Schedule 2.3(g).
Appears in 1 contract
Acquired Assets. On Subject to the terms and subject to the conditions of this Agreementherein set forth, at the Closing, Seller will Sellers shall sell, assign, transfer, convey, transfer and deliver to BuyerPurchaser free and clear of all Liens (other than the Permitted Liens), and Buyer will purchase, assume Purchaser shall purchase and acquire accept from SellerSellers, free and clear of all Encumbrances except for Liens (other than the Permitted EncumbrancesLiens), all of Seller’s Sellers' right, title, and interest in, to, and under the following, as the same shall exist on the Closing Date (collectively, the "Acquired Assets"): except as provided in Section 2.1(b) below, all assets owned by Sellers, wherever located, whether real, personal, or mixed, tangible or intangible, which shall also include Sellers' (i) interests in joint ventures and other ownership interests or business arrangements (to the extent any required written consent(s) or approval(s) of the other joint venture members, partners, or other parties thereto are obtained), (ii) prepaid items in respect of the Acquired Assets, (iii) Inventory, (iv) rebate accounts receivable, including such rebate accounts receivable listed on Schedule 2.1(a)(iv) hereto (such Schedule to include the name of each payor and the corresponding amount owed with respect to such rebate), (v) Government Payment Program Proceeds, (vi) if any, the Included Mariner Receivables (as defined in Section 2.3(a)(iv) below), (vii) right, title and interest in and to all of the names of Sellers and any variations thereof (including "American Pharmaceutical Services," "APS," and all corporate names, fictitious names, product names and service names) (subject to Section 7.15 hereof), and (viii) Medicare Part B Business and Assets as it relates only to the provision of Medicare Part B Products and Services to Independent Facilities (the "Acquired Medicare Part B Business and Assets").
(a) are herein referred to as the "Selling Affiliates") to sell, assign, transfer, convey, and deliver to Purchaser at Closing free and clear of all Liens (other than the Permitted Liens), and Purchaser shall purchase and accept from such Selling Affiliate(s) free and clear of all Liens (other than the Permitted Liens), all of such Selling Affiliates' right, title, and interest in, to, and under the assets identified in Schedule 2.1(a) hereto which are not owned by any Seller but which are used by Seller to carry out its VA Distribution Business in the Transferred Territory Acquired Business, as of the Effective Time, except for same shall exist on the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 Closing Date (collectively, the “Acquired "Additional Assets”):
(a) "). It is hereby understood and agreed that only the real property described on Additional Assets owned by the applicable Selling Affiliate identified in Schedule 2.1(a) (including the control buildings hereto may be acquired pursuant to this Agreement, and the no other buildings and related improvements located thereon) (collectively, the “Owned Real Property”);
(b) all assets of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred TerritorySelling Affiliate whatsoever, whether located on Owned Real Property real, personal, or a Transferred Easementmixed, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventoriestangible or intangible, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to shall be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned acquired by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory AssetsPurchaser hereunder.
Appears in 1 contract
Samples: Asset Purchase Agreement (Genesis Health Ventures Inc /Pa)
Acquired Assets. On Subject to the terms and subject to the conditions of this Agreement, at the Closing, Seller will Sellers agree to sell, assign, conveytransfer, transfer convey and deliver to Buyer, and Buyer will purchase, assume agrees to purchase and acquire from SellerSellers, free and clear of all Encumbrances except for Liens other than Permitted EncumbrancesLiens, all of Seller’s Sellers' right, title and interest in and to the all of their respective rights, properties and assets used by Seller of every kind, nature, character and description (whether real, personal or mixed, whether tangible or intangible, and wherever located) and whether or not required to carry out its VA Distribution Business be reflected on a balance sheet prepared in the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 accordance with GAAP (collectively, the “Acquired "Assets”):
(a) the real property described on Schedule 2.1(a) ("), including the control buildings and the other buildings and related improvements located thereon) (collectivelywithout limitation, the “Owned Real Property”);
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);following:
(i) all Contracts goodwill of the Business as a going concern;
(ii) all contracts, agreements, leases, instruments, obligations, arrangements or other understandings (whether written or oral) (including amendments and supplements, modifications, and side letters or agreements) (the "Business Contracts"), including those identified in effect Section 1.1(a)(ii) of the written statement delivered to Buyer by Sellers herewith and dated as of the date of this Agreement that relate primarily to hereof (the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by "Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”Disclosure Schedule");
(jiii) all customer lists trade accounts receivable and customer information databases all notes, bonds and other evidences of indebtedness and rights to receive payments arising out of sales ("Accounts Receivable"), including customer load data); vendor lists; operational those identified in Section 1.1(a)(iii) of the Seller Disclosure Schedule;
(iv) all marketing, sales and performance data for the Acquired Assetspromotional literature, GIS informationbooks, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studiesfinancial records, reportsbills, creative accounting, internal and audit records, operating manuals, personnel records, customer and supplier lists and files, preprinted materials and similar materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(kv) all Permits of Sellerrights, title and interests in and to all real property leases, including Transferable Permitsimprovements, that relate primarily to fixtures, fittings thereon and appurtenances thereto, including those identified in Section 1.1(a)(v) of the VA Distribution Business in the Transferred TerritorySeller Disclosure Schedule;
(lvi) all unexpired warranties relating rights to the Acquired Assetsall telephone numbers;
(mvii) all Accounts Receivable intangible assets, including Intellectual Property and Unbilled Revenueother intangible assets of an intellectual property nature, including the Intellectual Property listed on Section 1.1(a)(vii) of the Seller Disclosure Schedule;
(viii) all payments, deposits (including security deposits) and prepaid expenses and all rights to insurance proceeds;
(ix) all raw materials, components, work-in-process, finished products, inventory, office and other supplies, spare parts, packaging materials, samples and other accessories related thereto, wherever located, including any of the foregoing purchased subject to any conditional sales or title retention agreement in favor of any other Person, together with all rights against suppliers of such inventories;
(x) all furnishings, furniture, fixtures, equipment, tools, machinery, vehicles, art work and other tangible personal property, including the tangible personal property listed on Section 1.1(a)(x) of the Seller Disclosure Schedule;
(xi) all rights under warranties, representations and guarantees made by suppliers, manufacturers or contractors;
(xii) all Permits, including the Permits listed on Section 1.1(a)(xii) of the Seller Disclosure Schedule;
(xiii) except to enforcethe extent set forth in Section 1.1(b) below, execute on all cash and cash equivalents such as bank deposits, certificates of deposit and marketable securities (together, "Cash"); and
(xiv) all claims and causes of action against other Persons (regardless of whether or collect the samenot such claims and causes of action have been asserted), and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claimsof indemnity, causes of actionwarranty rights, rights of recoverycontribution, rights to refunds, rights of set off reimbursement and other rights of recoupment recovery (regardless of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent whether such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory Assetsare currently exercisable).
Appears in 1 contract
Acquired Assets. On Upon the terms and subject to the conditions of this Agreement, at the Closing, Seller will Pathmark and Plainbridge, as applicable, shall sell, transfer, assign, convey, transfer and deliver to BuyerPurchasers (as designated by Purchasers), and Buyer will Purchasers shall purchase, assume accept, and acquire from SellerPathmark and Plainbridge, as applicable, free and clear of any and all Encumbrances except for Permitted EncumbrancesLiens, all of Seller’s the right, title and interest of Pathmark and Plainbridge, as applicable, in and to the following assets (collectively, the "Acquired Assets"), except for the assets listed on Schedule 2.1 hereto (the "Excluded Assets"):
(a) Readily Saleable Merchandise remaining on the Closing Date after Pathmark has reduced the inventory level to a level as low as reasonably practicable while maintaining adequate service levels, which shall not exceed (including "price break" inventory) 2,825,000 cases collectively at the Grocery Facilities and at the Dayton Facility (collectively, the "Transferred Inventory"), but Pathmark and Plainbridge will have no "external price-break" inventory;
(b) All of Pathmark's rights and benefits under the Assumed Contracts and the Assumed Collective Bargaining Agreements;
(c) All machinery, equipment (including, without limitation, all computers located in or at the Grocery Facilities), office materials, tools, pallets, spare parts, supplies and all other tangible personal property located in and at the Grocery Facilities or otherwise primarily benefitting the Grocery Facilities, and the leasehold improvements currently in, on, or attached to the Grocery Facilities including, without limitation, the equipment itemized on Exhibit B hereto and the racks at or attached to each of the Grocery Facilities and all parking lot improvements (collectively, the "Grocery Assets"). A list of all leasehold improvements at the Grocery Facilities is attached hereto as Exhibit B;
(d) All machinery, equipment (including, without limitation, all computers located in or at the Dayton Facility), office materials, tools, pallets, spare parts, supplies and all other tangible personal property located in and at the Dayton Facility or otherwise primarily benefitting the Dayton Facility, and the leasehold improvements currently in, on or attached to the Dayton Facility including, without limitation, the equipment itemized on Exhibit B hereto and the racks at or attached to the Dayton Facility and all parking lot improvements (collectively, the "Frozen Food Assets"). A list of all leasehold improvements at the Dayton Facility is attached hereto as Exhibit B;
(e) All of Plainbridge's right, title and interest in and to the assets used by Seller certain real property more particularly described in Exhibit D hereto located in Woodbridge, Middlesex County, New Jersey, including all structures and improvements thereon, all easements, rights-of-way, privileges, zoning and development rights and other rights and benefits, if any, which are appurtenant to carry out its VA Distribution Business such real property, and all right, title and interest of Plainbridge in and to any gaps, strips or gores adjoining or adjacent to such real property and in and to any land lying in the Transferred Territory as bed of the Effective Timeany street, except for the assets expressly excluded below road or excluded avenue, open or proposed, in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the “Acquired Assets”):
(a) the front of or adjoining such real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”);
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a"Woodbridge Facility"); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;and
(f) all InventoriesAll of Pathmark's right, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer title and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
interest (i) all Contracts in effect as of the date of this Agreement tenant under (A) that relate primarily to the VA Distribution Business in the Transferred Territorycertain Lease dated June 15, including operating agreements1994 by Dayton Properties Associates, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreementsas landlord, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1Pathmark, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectivelytenant, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
Dayton Facility, as amended by First Amendment to Lease dated January 16, 1995 (m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same"Dayton Facility Lease"), and all rights (B) that certain Four Party Agreement among Dayton Properties Associates, DKM Properties Corp., Dayton Property Owners Association, and Pathmark dated June 15, 1994; (ii) as tenant under that certain Net Lease dated March 11, 1996 by Xxxxxxxx Xxxx Associates, as landlord, and Pathmark, as tenant (the "Brunswick Facility Lease") relating to the Customer Deposits Brunswick Facility; and (but not iii) as tenant under that certain Agreement of Lease dated October 1, 1983 by Xxxx Xxxx Corporation, as landlord, and Pathmark (formerly known as Supermarkets General Corporation), as tenant, as amended by Renewal Agreement and Lease Amendment dated April 30, 1993, (the cash related "Banana Ripening Facility Lease"; together with the Dayton Facility Lease, the Brunswick Facility Lease and the Woodbridge Facility, collectively referred to such depositsherein as the "Acquired Facilities");
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties . Notwithstanding anything to the extent relating contrary in this Agreement, Plainbridge's sale of the Woodbridge Facility and Pathmark's assignment of its interests under the Assigned Leases to CSWG will be made subject to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory AssetsPermitted Encumbrances.
Appears in 1 contract
Acquired Assets. On the terms and subject to the terms and conditions of this Agreement, at the Closing, Seller will Buyer shall purchase from each Alarm Subsidiary, and each Alarm Subsidiary shall sell, assigntransfer, convey, transfer convey and deliver to Buyer, and Buyer will purchase, assume and acquire from Seller, free and clear of all Encumbrances except for any Security Interest other than Permitted EncumbrancesLiens, all of Seller’s its right, title and interest in and to all of the assets included in or used by Seller to carry out its VA Distribution Business primarily in the Transferred Territory as business of the Effective Time, except for Alarm Service Assets (other than the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 Excluded Assets) (collectively, the “"Acquired Assets”):"), including, without limitation (subject to retention by the Alarm Subsidiaries pursuant to Section 2.2) all of their right, title and interest in the assets listed on the Acquired Assets Schedule attached hereto and the following assets to the extent used or included in or generated in connection with the operations of the Alarm Service Assets:
(a) the real property described on Schedule 2.1(a) (including the control buildings lock boxes of RSC, Seller and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”)Alarm Subsidiaries;
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings prepaid costs and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”)prepaid expenses;
(c) all of the substationsaccounts, control buildings, service centers notes and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territoryreceivables;
(d) Inventory including raw materials and supplies, manufactured and purchased parts (including without limitation motion, smoke and heat detectors and alarm control panels whether or not held on the Distribution FacilitiesCompanies' premises, its customers' premises or elsewhere), work-in-process, finished goods and other items of inventory;
(e) Buyer’s Shared Equipmentmachinery, equipment, furniture, fixtures, leasehold improvements, vehicles and other tangible personal property including that listed on the Acquired Assets Schedule attached hereto;
(f) Intellectual Property, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all Inventoriesjurisdictions; the names, but excluding those Inventories not located at a facility listed trade names, trade dress, and logos as described on the Intellectual Property Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereofattached hereto;
(g) except for the Excluded Tangible Personal Propertyrights under agreements, all other machinery (mobile or otherwise)contracts, equipment (including computer and office equipment)purchase orders, tools, furniture and furnishings contractual rights and other personal property thatsimilar arrangements, in each caseincluding all amendments thereto, are not classified as inventory under GAAP and that relate to the Alarm Service Assets that are owned by Seller and used Small Contracts, Customer Contracts or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers are set forth on the Assumed Contracts Schedule 2.1(gattached hereto (collectively, the "Assumed Contracts");
(h) subject to Section 2.5performance, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business surety and warranty bonds entered into in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h)Ordinary Course of Business;
(i) all Contracts in effect as of the date of this Agreement that relate primarily prepayments and deposits to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including extent any Contracts that relate primarily benefit therefrom could inure to the VA Distribution Business in the Transferred Territory that are entered into by Seller Buyer after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”)Closing;
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of actionrefunds, rights of recovery, rights of set off and rights of recoupment of Seller against third parties any kind, except with respect to (i) Taxes incurred prior to the Closing Date, (ii) insurance with respect to Excluded Assets and (iii) holdbacks of Republic stock with respect to acquisitions by the Companies prior to the Closing Date;
(k) all franchises, approvals, permits, licenses, orders, registrations, certificates, variances and similar rights obtained from governments and governmental agencies, to the extent relating transferable to the Assumed ObligationsBuyer;
(ol) all Intellectual Property described rights to the telephone numbers used in Schedule 2.1(o) the operation of the Alarm Service Assets and rights to receive mail and other communications addressed to the Companies which relate to the Alarm Service Assets (including mail and communications from customers, suppliers, distributors, agents and others and payments with respect to the “Acquired Intellectual Property”Assets);
(pm) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant books, records, ledgers, files, documents, correspondence, lists, drawings, specifications, advertising and promotional materials, studies, reports and other printed or written materials relating to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to Acquired Assets or the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase AgreementsServices;
(qn) rights to serve other property owned by the existing certified service territory of Seller Alarm Subsidiaries and used primarily in the portion operations of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, Alarm Service Assets at any time prior to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory AssetsClosing Date.
Appears in 1 contract
Acquired Assets. On The Acquired Assets include, without limiting the terms and subject generality of the foregoing, the following (to the conditions of this Agreementextent such are not Excluded Assets) provided, at the Closinghowever, Seller will sell, assign, convey, transfer and deliver to Buyer, and Buyer will purchase, assume and acquire from Seller, free and clear of all Encumbrances except for Permitted Encumbrances, all of Seller’s right, title and interest in and that notwithstanding any implication to the assets used by Seller to carry out its VA Distribution Business in contrary, BU is transferring only the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the “Acquired BU Assets”):;
(a) All of Sellers' machinery, equipment, tools, dies, vehicles, furniture, fixtures, and all other fixed assets and all other tangible personal property, wherever located, existing on the real property described on Schedule 2.1(a) (including Foreclosure Date, of or relating to the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”);
Business; (b) All of Sellers' patents, trademarks, trademark registrations, service marks, trade names, patent applications, inventions, trademark applications, processes, know-how, licenses, blueprints, drawings, designs, patterns, copyrights, franchises and formulae, information and documents (including log books) relating to research and development, whether or not completed, and all other forms of Seller’s Easements in Intellectual Property, existing on the Transferred Territory that are primarily related Foreclosure Date, of or relating to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
; (c) All of Sellers' raw materials, supplies, packages, boxes, containers, work in process and finished goods, constituting all of the substationsinventory of Sellers, control buildingswherever located, service centers and other buildings, fixtures and improvements located existing on the Owned Real Property Closing Date, of or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of relating to the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) All of BL's trade accounts receivable existing on the Distribution Facilities;
Foreclosure Date up to and including the Closing Date and all of National's factored and unfactored accounts and accounts receivable existing on the Foreclosure Date up to and including the Closing Date, of or relating to the Business; (e) Buyer’s Shared Equipment;
All of Sellers' prepaid expenses and accounts existing on the Foreclosure Date of or relating to the Business; (f) all InventoriesAll of Sellers' rights, which are now or were formerly owned by BL, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) none of Sellers' obligations, duties, or 2.1(c)(2) liabilities under all contracts, agreements, leases and licenses, and choses in action and general intangibles, whether formerly owned by BL or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
otherwise; and (g) except for the Excluded Tangible Personal PropertyAll of Sellers' rights, all other machinery (mobile which are now or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are were formerly owned by Seller BL, under all State, Federal, Municipal, and used regulatory agency approvals, actual or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”)pending and whether written or oral, provided, that with respect to vehicles direct or indirectly held; and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5All of Sellers books, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment papers, computer hardware and software and related documentation and records, which are now or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territorywere formerly owned by BL, including operating agreementswithout limitation property lists, franchise agreementspayroll and personnel records, sales records, contracts and orders, books of account, customer contractslists, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, supplier lists and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1advertising and promotional material, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectivelyminute books, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assetscapital stock records, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materialstax returns, and other writtenpersonal correspondence of executives, printed or electronic materials, in each case, and documents relating solely to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession ownership of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Sellerreal property; provided, including Transferable Permitshowever, that relate primarily subsequent to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled RevenueClosing Sellers shall, together with all rights to enforceupon request, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related be given such reasonable access to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled documents as an LSE may be necessary for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory AssetsSellers' respective legitimate business purposes.
Appears in 1 contract
Acquired Assets. On Upon the terms and subject to the conditions of set forth in this Agreement, at the Closing, Seller will Closing the Sellers shall sell, assign, convey, transfer and deliver to Buyerthe Purchaser, and Buyer will the Purchaser shall purchase, assume all properties, assets, rights, titles and acquire from Sellerinterests of every kind and nature, whether tangible or intangible, whether real or personal and wherever located and by whomever possessed, related to the Business and owned by the Sellers free and clear of any and all Encumbrances except for Permitted Encumbrances, all of Seller’s right, title and interest in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory Liens as of the Effective TimeClosing Date (other than Permitted Encumbrances), except for the assets expressly excluded below or excluded as set forth in Section 2.2, including the assets more specifically described 2.1(b) below and added after the date hereof pursuant to Section 2.6 (collectively, the “"Acquired Assets”):"), including, without limitation:
(ai) all Proprietary Rights owned by either Seller or those Proprietary Rights owned by Stockholder and used in the Business, including without limitation those Proprietary Rights set forth on the Proprietary Rights Schedule, together with all income, royalties, damages and payments due or payable as of the Closing or thereafter, including, without limitation, damages and payments for past, present or future infringements or misappropriations thereof, the right to sue and recover for past infringements or misappropriations therxxx and any and all corresponding rights that, now or hereafter, may be secured throughout the world and all copies and tangible embodiments of any such Proprietary Rights (in whatever form or medium);
(ii) all of the Sellers' rights existing under leases (other than the Terminated Leases), contracts, distribution arrangements, sales and purchase agreements, other agreements and business arrangements associated with or used by the Business, including, without limitation, all contracts and agreements described on the Contracts Schedule attached hereto, including renewal rights related thereto (collectively "Contracts");
(iii) all real property described on Schedule 2.1(a) (including leased by the control buildings Sellers, and all rights to easements, servitudes, licenses, rights of way, permits and all appurtenances to such leased property, including, without limitation, all appurtenant rights in and to public streets, whether or not vacated pursuant to the other buildings leases for that real property, held by Seller and related improvements located thereon) associated with or used by the Business (collectively, the “Owned "Real Property”");
(biv) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings leasehold improvements and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer all transportation and office equipment), toolsfixtures, trade fixtures and furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and the Sellers wherever located, including, without limitation, all such items which are located in any building, office or other space leased, owned or occupied by the Sellers or used or held for use by Seller primarily in connection with the VA Distribution Business in the Transferred Territory Real Property (the “Tangible Personal Property”"Leasehold Improvements"), provided, that with respect regardless of whether title to vehicles and trailers owned by Seller, the Acquired Assets will only include Leasehold Improvements is subject to reversion to the landlord or other third party upon the expiration or termination of such Lease (but subject to those vehicles and trailers set forth on Schedule 2.1(gprovisions);
(hv) subject to Section 2.5all office supplies, other miscellaneous supplies, and other tangible property of any kind wherever located, including, without limitation, all rights property of Seller as lessee under any kind located in any building, office or other space leased, owned or occupied by the leases set forth on Schedule 2.1(h) (Sellers or where any of the “Equipment Leases”) to Sellers' properties and assets may be situated that are used by or associated with the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h)Business;
(ivi) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred TerritorySellers' claims, including operating agreementsdeposits, franchise agreementsprepayments, customer contractsprepaid expenses, electrical service agreementswarranties, interconnect agreementsguarantees, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claimsrefunds, causes of action, choses in action, rights of recovery, rights of set set-off and rights of recoupment of Seller against third parties any kind with respect to the extent relating to the Assumed Obligations;
Acquired Assets (o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”other than Cash);
(pvii) rights the right to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant receive and retain mail and other communications relating to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase AgreementsBusiness;
(qviii) rights all lists, records and other information pertaining to serve accounts, personnel and referral sources, suppliers and customers (whether past or current); and all books, ledgers, files, correspondence and business records of every kind; whether evidenced in writing, electronically (including, without limitation, by computer) or otherwise (the existing certified "Business Records") associated with the Business, provided, however, that Sellers may retain copies of and access to the Business Records necessary to collect all accounts receivable and service territory accounts payable of Seller in the portion of the Commonwealth of Virginia described in Annex A heretoSellers;
(rix) the Transferring Employee Recordsall advertising, to the extent permitted by Lawmarketing and promotional materials and all other printed or written materials;
(sx) all transferable permits, Licenses, franchises, orders, registrations, certifications, variances and approvals from all permitting, licensing, accrediting and certifying agencies, and the assets deemed rights to be Acquired Assets all data and records held by such permitting, licensing and certifying agencies (collectively "Permits") and all non-transferable Permits pursuant to Sections 2.5 or 2.6Section 7.13;
(txi) all carbon credits and renewable energy attributestelephone numbers, including renewable energy creditstoll-free numbers, green tags, carbon emissions reductions used by the Sellers;
(xii) all goodwill as a going concern and similar attributes, if any, to all other intangible properties;
(xiii) the extent primarily related to names "Insurance Plus," "Yale International Insurance" and "Yale Insurance;"
(xiv) the VA Distribution Business in fixed assets listed on the Transferred TerritoryFixed Assets Schedule; and
(uxv) except as specified in Section 2.1(b) below, all other property owned by the rights Sellers, or in which any Seller has an interest on the Closing Date in any way associated with the Business, including without limitation, all personal computers, signage and obligations fixed assets related to Regulatory Assetsthe Business and any and all subsequent improvements or additions thereon through the Closing Date.
Appears in 1 contract
Samples: Asset Purchase Agreement (First Acceptance Corp /De/)
Acquired Assets. On the terms and subject to the conditions of set forth in this Agreement, at upon the Closing, Seller will sell, assign, convey, transfer and deliver to Buyer, and Buyer will purchase, assume Purchaser or a Purchaser Designee shall purchase and acquire from Seller, free and clear of all Encumbrances except for Permitted EncumbrancesSeller shall sell, convey, assign, transfer, and deliver to Purchaser or a Purchaser Designee, all of Seller’s right, title and interest in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective TimeClosing in all properties, except for the assets expressly excluded below or excluded in Section 2.2assets, including the assets more specifically described below rights and added after the date hereof pursuant to Section 2.6 (collectively, the “Acquired Assets”):
(a) the real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”);
(b) all interests of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territoryany kind, whether located on Owned Real Property tangible or a Transferred Easementintangible, real or personal, and wherever located, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventoriesowned, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Propertyused, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in connection with or otherwise related to the VA Distribution Business in Business, except for the Transferred Territory Excluded Assets (the “Tangible Personal PropertyAcquired Assets”), providedfree and clear of all Liens other than Permitted Liens, that with respect to vehicles and trailers owned by Seller, including the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);following:
(i) all Contracts in effect as of the date of this Agreement that relate primarily related to the VA Distribution Business in the Transferred Territoryto which Seller is a party and all rights of Seller thereunder, including operating agreements, franchise agreements, customer contracts, electrical but not limited to the Amazon Business Services Agreements and terms of service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, poleagreements for WalMart and eBay’s e-attachment agreements, joint-use agreementscommerce platforms set forth on Schedule 2.1(a)(i) and any Contracts related to the sale of products in any physical retail space, and including any excluding the Excluded Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Acquired Contracts”);
(jii) all customer lists and customer information databases (Intellectual Property, including customer load data); vendor lists; operational and performance data for the Acquired AssetsMarks, GIS informationAcquired Patents, books E-Commerce Assets and records; meter reading other Intellectual Property set forth on Schedule 2.1(a)(ii);
(iii) the Acquired Amazon Accounts;
(iv) all lists, records and service data; operatingother information pertaining to accounts, safety personnel and maintenance records; warranty information; engineering designsreferral sources, plansvendors, blueprints suppliers, licensors and as-built plans and specifications and procedures; system drawings; ledgerscustomers, filesall advertising, documents, studies, reports, creative materials, advertising marketing and promotional materials, and all drawings, diagrams, reports, studies, plans, books, ledgers, files and business and accounting records of every kind (including all financial, business and marketing plans), in each case whether evidenced in writing, electronic data, computer software or otherwise;
(v) all finished goods inventory, goods in transit, returned goods, other writtengoods available for sale, printed or electronic work-in-process inventory and raw materials, in each casecase as set forth on the Inventory Statement (“Specified Inventory”);
(vi) all credits, to the extent primarily prepaid expenses and security deposits related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influenceSpecified Inventory, including those set forth on Schedule 2.1(a)(vi);
(kvii) all Permits claims and proceeds under all insurance policies of Seller, including Transferable Permits, Seller that relate primarily provide coverage with respect to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to any of the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(nviii) all claims, refunds, credits, causes of action, rights of recovery, rights of set off recovery and rights of recoupment set-off of Seller against third parties to the extent relating to the Assumed Obligations;
any kind (o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily other than those related to the VA Distribution Business in the Transferred TerritoryExcluded Assets or Excluded Liabilities); and
(uix) all goodwill associated with the rights Business or any of the Acquired Assets. To the extent any assets or property (including any Intellectual Property) owned by an Affiliate of Seller are used in, held for use in, or are reasonably necessary for the continued conduct of the Business (other than the Excluded Assets), they shall be included within the defined term “Acquired Assets” for purposes hereof if they would have been so included had they been owned by Seller, and obligations related Seller shall cause such Affiliate, to Regulatory Assetsconvey such assets and property to Purchaser free and clear of all Liens other than Permitted Liens for no additional consideration.
Appears in 1 contract
Acquired Assets. On the terms and subject Subject to satisfaction prior to the Closing of the conditions of this Agreementset forth in Sections 1 and 4 hereof, at the Closing, Seller will Tanners shall sell, assign, conveytransfer, transfer and deliver to BuyerRTI, and Buyer will RTI shall purchase, assume acquire and acquire take assignment and delivery of the following assets of Seller (collectively, the "Acquired Assets"):
(a) All of Tanners' cash, accounts receivable, prepaid charges, and telephone numbers, provided, however, that from Sellersuch cash Tanners and RTI will establish an escrow in an amount to determined by Tanners and RTI for payment of administrative expense claims incurred from the Petition Date through the Closing, free with any payment from the escrow to be made only with the mutual agreement of Tanners and clear RTI;
(b) All of Tanners' title to, interest in, and rights under the Restaurant Leases and, to the extent covered by the Restaurant Leases, any and all fixtures, leasehold improvements, machinery, installations, equipment, and other property attached thereto or located thereon (the "Leased Real Property"), and any security deposits, escrow accounts, or utility deposits related to the Restaurant Leases;
(c) All inventory of Tanners used or useful in the operations of the Acquired Restaurants;
(d) All fixtures, machinery, equipment, furniture, restaurant or office furnishings, tools, spare parts, and other personal property of Tanners used or useful in the operations of the Acquired Restaurants;
(e) All right, title and interest of Xxxxxx'x in trademarks, trademark rights and interests necessary for the exclusive use of the trademarks "Xxxxxx'x", "Xxxxxx'x - Home of the Rotisserie" and derivations therefrom in connection with continued operations of the Acquired Restaurants and in connection with expansion of Tanners' restaurant concept in connection with any other restaurants or business operations of RTI or its licensees throughout the United States and the world (collectively, the "Acquired Trademarks");
(f) All of Tanners' right, title, and interest in, under or to all patents, trademarks, trade names, and copyrights, and applications therefor, owned by or under license to Tanners and used in connection with the Acquired Restaurants, and all inventions, discoveries (whether or not patentable), processes, designs, know-how, trade secrets, proprietary data, intellectual property of all Encumbrances except kinds and other technology owned by or under license to any of Tanners and used in connection with operation of the Acquired Restaurants, including without limitation all drawings, plans, specifications, patterns, blueprints, information, knowledge, and procedures used in connection with the design or operation of the Acquired Restaurants (collectively, the "Intellectual Property");
(g) All of Tanners' rights under any contracts with vendors or other third parties or under any other executory contracts or unexpired leases which, in each case, are identified by RTI prior to the Closing as being appropriate for Permitted Encumbrancescontinued operation of the Acquired Restaurants (collectively, all the "Identified Executory Contracts");
(h) All of Seller’s Tanners' permits, licenses, and franchises relating to the operation of the Acquired Restaurants, to the extent transfer or assignment is permitted by law;
(i) All of Tanners' interest in connection with liquor licenses used in connection with operation of the Acquired Restaurants before the Petition Date;
(j) All of Tanners' goodwill relating to the operation of the Acquired Restaurants and the use of the Acquired Trademarks and Intellectual Property;
(k) All of Tanners' interest in any software, vendor lists, programs, and other intangibles used in or related to the operation of the Acquired Restaurants;
(l) All of Tanners' right, title and interest in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the “Acquired Assets”):
(a) the real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”);
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating any franchise agreements, franchise agreementsrights and royalties, customer contractsincluding, electrical service agreementswithout limitation, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily the right to the VA Distribution Business enter into franchises in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data)future; vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;and
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all All of Tanners' rights relating to or arising out of express or implied warranties from the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties suppliers to the extent relating Tanners with respect to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreementsequipment, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreementsfixtures, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller or other items included in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory Assets.
Appears in 1 contract
Samples: Asset Purchase Agreement (Tanners Restaurant Group Inc)
Acquired Assets. On Upon the terms and subject to the conditions of set forth in this Agreement, at the Closing, Seller will shall sell, convey, assign, convey, transfer and deliver to Buyer, and Buyer will purchase, assume shall purchase and acquire from Seller, free and clear of all Encumbrances except for Permitted any Encumbrances, all of Seller’s right, title title, and interest in in, to, and under the all of the properties and assets of Seller to the extent that such properties and assets used by Seller to carry out its VA Distribution Business in the Transferred Territory exist as of the Effective TimeClosing and primarily relate to the Business (other than the Excluded Assets), except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 wherever located (collectively, the “Acquired Assets”):) including, without limitation, the following:
(ai) all Seller Books and Records, excluding, for the real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectivelyavoidance of doubt, the “Owned Real Property”)Excluded Seller Books and Records;
(bii) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed Tangible Personal Property identified on Schedule 2.1(b1.1(a)(ii) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), providedexcluding, that with respect to vehicles and trailers owned by Sellerfor the avoidance of doubt, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g)Excluded Tangible Personal Property;
(hiii) subject to Section 2.5, all rights of Seller as lessee under the leases set forth Intellectual Property identified on Schedule 2.1(h1.1(a)(iii) and Seller’s rights to damages for the infringement thereof (the “Equipment LeasesTransferred Seller Intellectual Property”) to ), excluding, for the extent relating to equipment or vehicles primarily related to avoidance of doubt, the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h)Excluded Seller Intellectual Property;
(iiv) all Seller Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 identified on Schedule 1.1(a)(iv)(A) (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all of the Seller’s rights thereunder, excluding, for the avoidance of doubt, Seller’s rights thereunder relating to Accounts Receivable (other than Accounts Receivable identified on Schedule 1.1(a)(iv)(B) (such identified Accounts Receivable, the Customer Deposits (but not the cash related to such deposits“Transferred Accounts Receivable”));
(nv) all claimsprepaid expenses, causes of actioncredits, rights of recoveryadvance payments, rights of set off security deposits, sums and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligationsfees identified on Schedule 1.1(a)(v);
(ovi) all Intellectual Property described in Governmental Authorizations identified on Schedule 2.1(o1.1(a)(vi) (the “Acquired Intellectual PropertyTransferred Governmental Authorizations”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except but only to the extent such rights have been assigned by Seller pursuant to the Power Purchase AgreementsTransferred Governmental Authorizations may be transferred under applicable Legal Requirement;
(qvii) all rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent they are primarily related to Business or the VA Distribution Business in the Transferred TerritoryAcquired Assets) to any Action, Proceeding or claim of any nature available to or being pursued by Seller, whether arising by way of counterclaim or otherwise (excluding those relating to Excluded Assets or Excluded Liabilities); and
(uviii) all of the rights and obligations related to Regulatory Assetsother assets identified on Schedule 1.1(a)(vii).
Appears in 1 contract
Acquired Assets. On the terms and subject to the conditions of set forth in this Agreement, at the Closing, Seller will the Sellers shall sell, assign, conveytransfer, transfer convey and deliver deliver, or cause to be sold, assigned, transferred, conveyed and delivered, to the Buyer, and the Buyer will purchaseshall purchase and accept from the Sellers, assume all of the Sellers’ right, title and acquire from Sellerinterest as of the Closing in all properties, assets, interests and rights of every kind and nature, whether tangible or intangible, disclosed or undisclosed, real or personal and wherever located and by whomever possessed, that are primarily related (or, where so specified, to the extent primarily related) to the Business and not included in the Excluded Assets free and clear of all Encumbrances except for Liens, other than Permitted Encumbrances, all of Seller’s right, title and interest in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 Liens (collectively, the “Acquired Assets”), including (other than, for the avoidance of doubt, those assets explicitly listed as Excluded Assets in Section 2.2):
(a) the real property described Assigned Intellectual Property, all pursuant to and as provided in the Intellectual Property Assignment and License Agreement;
(b) other rights and technology pursuant to and as provided under the Intellectual Property Assignment and License Agreement;
(c) all inventory set forth on Schedule 2.1(a2.1(c) (including which schedule provides a detailed schedule of the control buildings inventory of the Business as of June 26, 2016 and shall be updated as of a recent month end prior to the Closing to provide an estimate to reflect changes to such inventory; provided that, for the avoidance of doubt, there shall be no adjustment to the Purchase Price based on such schedule and any adjustment to the Purchase Price based on inventory of the Business in connection with the Closing shall be made in accordance with the provisions of Section 2.8) (the “Inventory”);
(d) the equipment, hardware, computers, machinery, tools and tooling, furniture, fixtures, supplies, leasehold improvements, motor vehicles and other tangible personal property set forth on Schedule 2.1(d) (which schedule may be updated by Parent between the date of this Agreement and the Closing to reflect changes in the Ordinary Course of Business), together with any third-party software products that were provided with and are integrated with or otherwise used primarily in connection with the operation of such equipment, hardware or other buildings tangible personal property;
(e) subject to Section 2.5, Section 6.2(b), all Contracts to the extent related primarily to the Business, including those that are set forth on Schedule 2.1(e), and the Federal Proposals set forth on Schedule 2.1(e) and any other Federal Proposals to the extent primarily related improvements located thereon) to the Business (collectively, the “Assumed Contracts”), but excluding any Contract (i) with any Business Employee (including any such Contract relating to compensation or benefits provided to any such Business Employee) that is not listed on Schedule 2.1(e) or (ii) that is primarily related to the Business that is not listed on Schedule 2.1(e) and is a Significant Business Contract unless, (x) such Contract is listed as a Federal Proposal on Schedule 2.1(e) and becomes a Federal Contract prior to the Closing, or (y) with respect to any such Contract entered into between the date of this Agreement and the Closing Date, the Buyer’s written consent (which consent shall not be unreasonably withheld, conditioned or delayed) is obtained;
(f) all rights, causes of action, judgments, claims and demands of whatever nature existing as of the Closing Date under manufacturers’ and vendors’ warranties, in each case to the extent primarily related to the Acquired Assets;
(g) all Files and Records to the extent primarily related to the Business or any Acquired Asset or Assumed Liability, but specifically excluding any Files and Records that are described in Section 2.2(d) or Section 2.2(e); provided that in the case of Files and Records that relate primarily but not exclusively to the Business or any Acquired Asset or Assumed Liability, the Seller may provide the Buyer copies thereof and retain the original materials if the Seller determines in good faith that doing so is administratively expedient;
(i) all suits, proceedings, rights, counterclaims, requests for equitable adjustment under Federal Contracts, rights of set-off and other claims (including under indemnification agreements in favor of either Seller) (whether known or unknown, matured or unmatured, accrued or contingent) that either Seller may have against any Person as of the Closing Date, in each case to the extent: (A) primarily related to the Business; or (B) arising out of or relating to any Acquired Asset or Assumed Liability, in each case other than under or with respect to the insurance policies of either Seller or its Affiliates; and (ii) all insurance proceeds under the insurance policies of either Seller or its Affiliates on account of the damage or complete destruction between the date of this Agreement and the Closing Date of any assets or properties that would have been included in the Acquired Assets but for such damage or destruction, in each case net of any deductible and the actual out-of-pocket cost of repair, replacement or remediation incurred by such Seller prior to the Closing and related reasonable administrative costs;
(i) all real property listed on Schedule 2.1(i) and the structures, improvements, buildings and facilities located thereon, including all rights, titles and interests appurtenant to such real property (the “Owned Real Property”);
(bj) all of Seller’s Easements interests in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements leased real property listed on Schedule 2.1(b2.1(j) (including the control and in any structures, improvements, buildings and facilities located on such leased property (together with the other buildings and related improvements located thereon) (collectivelyleased real property of the Business Subsidiary, the “Transferred EasementsLeased Real Property,” and together with the Owned Real Property, the “Real Property”);
(ck) all of tangible assets and property physically located in the substationsstructures, control buildingsimprovements, service centers buildings and other buildings, fixtures and improvements facilities located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred TerritoryClosing Date;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(fl) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, trade accounts receivable to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of SellerBusiness, including Transferable Permits, that relate primarily those originated prior to the VA Distribution Closing from external sales of Business in the Transferred Territory;
(l) Products or pursuant to Assumed Contracts, and all unexpired warranties relating rights to invoice and receive payments for Business Products shipped to customers prior to the Acquired AssetsClosing;
(m) all Accounts Receivable prepayments and Unbilled Revenueprepaid expenses, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, each case to the extent primarily related to the VA Distribution Business, other than for the insurance policies of either Seller or its Affiliates;
(n) the capital stock (the “Business Subsidiary Stock”) of Cree Fayetteville, Inc. (the “Business Subsidiary”);
(o) any other assets reflected on the Closing Date Adjustment Amount Schedule and any assets listed on Schedule 2.1(o), which schedule may be updated by Parent between the date of this Agreement and the Closing to reflect changes in such assets in the Transferred TerritoryOrdinary Course of Business;
(p) any Seller Authorizations (including Seller Environmental Authorizations) to the extent primarily related to the Business or any Acquired Asset or the operation or use thereof, to the extent transferable under Law to the Buyer; and
(uq) all goodwill and going concern value to the rights and obligations extent primarily related to Regulatory Assetsthe Business or any Acquired Asset. Notwithstanding anything contained herein to the contrary, the Cree Name shall not be an Acquired Asset.
Appears in 1 contract
Samples: Asset Purchase Agreement (Cree Inc)
Acquired Assets. On Subject to the terms and subject to the conditions of this Agreement, at the Closingeffective as June 30, 2001, Seller will agrees to sell, assign, conveytransfer, transfer convey and deliver to Buyer or its designee(s) (which shall be an affiliate of Buyer, reasonably satisfactory to Seller), and Buyer will purchase, assume agrees to purchase and acquire (or cause any such designee(s) to purchase and acquire) from Seller, free and clear as of all Encumbrances except for Permitted Encumbrancesthe Closing, all of Seller’s 's right, title and interest in and to the all of its rights, properties and assets used by Seller of every kind, nature, character and description (whether real, personal or mixed, whether tangible or intangible, and wherever located) and whether or not required to carry out its VA Distribution Business be reflected on a balance sheet prepared in the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 accordance with GAAP (collectively, the “Acquired "Assets”):
(a) the real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively"), including, without limitation, the “Owned Real Property”);
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);following:
(i) all Contracts goodwill as a going concern;
(ii) all of Seller's contracts, agreements, leases, instruments, obligations, arrangements or other understandings (whether written or oral) (including amendments and supplements, modifications, and side letters or agreements), including, without limitation, those identified in effect Section 1.1(a)(ii) of the written statement delivered to Buyer by Seller herewith and dated as of the date of this Agreement that relate primarily to hereof (the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by "Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”Disclosure Schedule");
(jiii) Intentionally omitted;
(iv) all customer lists marketing, sales and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assetspromotional literature, GIS informationbooks, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studiesfinancial records, reportsbills, creative materialsaccounting, advertising internal and promotional audit records, operating manuals, personnel records, customer and supplier lists and files, preprinted materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business similar items in the Transferred Territory and in Seller’s possession or under the control of Seller or in the possession or under the control of any third parties within Seller’s reasonable control its Affiliates or influencetheir representatives;
(kv) all Permits rights, title and interests of SellerSeller in and to all real property leases, including Transferable Permitsimprovements, that relate primarily to fixtures, fittings thereon and appurtenances thereto, including, without limitation, those listed in Section 1.1(a)(v) of the VA Distribution Business in the Transferred TerritorySeller Disclosure Schedule;
(lvi) all unexpired warranties relating rights to all telephone numbers related to the Acquired AssetsBusiness and rights to the name "Consolidated Apparel Group";
(mvii) all Accounts Receivable intangible assets, including Intellectual Property and Unbilled Revenueother intangible assets of an intellectual property nature, including, without limitation, the Intellectual Property listed on Section 1.1(a)(vii) of the Seller Disclosure Schedule;
(viii) all payments, deposits (including security deposits) and prepaid expenses of Seller and all rights to insurance proceeds;
(ix) all raw materials, components, work-in-process, finished products, inventory, office and other supplies, spare parts, packaging materials, samples and other accessories related thereto, wherever located, including any of the foregoing purchased subject to any conditional sales or title retention agreement in favor of any other Person, together with all rights to enforceof Seller against suppliers of such inventories;
(x) all furnishings, execute furniture, fixtures, equipment, tools, machinery, vehicles, art work and other tangible personal property, including, without limitation, the tangible personal property listed on Section 1.1(a)(x) of the Seller Disclosure Schedule;
(xi) all rights under warranties, representations and guarantees made by suppliers, manufacturers or collect contractors;
(xii) all Permits, including, without limitation, the samePermits listed on Section 1.1(a)(xii) of the Seller Disclosure Schedule;
(xiii) all cash and cash equivalents such as bank deposits, certificates of deposit and marketable securities; and
(xiv) all claims and causes of action against other Persons (regardless of whether or not such claims and causes of action have been asserted by Seller), and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claimsof indemnity, causes of actionwarranty rights, rights of recoverycontribution, rights to refunds, rights of set off reimbursement and other rights of recoupment recovery possessed by Seller (regardless of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent whether such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory Assetsare currently exercisable).
Appears in 1 contract
Acquired Assets. On Subject to the terms and subject to the conditions of this Agreement, at the Closing, Seller will agrees to sell, assign, conveytransfer, transfer convey and deliver to the Buyer, and the Buyer will purchase, assume agrees to purchase and acquire from Selleracquire, free and clear of all Encumbrances except for Permitted EncumbrancesLiens, all of the Seller’s 's right, title and interest in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as all of the Effective TimeSeller's property and assets, except for real, personal or mixed, tangible and intangible, of every kind and description, wherever located, but excluding the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 Retained Assets (collectively, the “"Acquired Assets”):"). Without limiting the generality of the foregoing, but subject to Section 1.1(b), the Acquired Assets shall include all of the following rights, title, interests, assets and properties, if any, existing as of the Closing Date, of the Seller:
(ai) subject to Section 1.1(b), all of the real property described on Schedule 2.1(a) contracts, agreements, license agreements, Health Plan Policies and leases, including amendments and supplements, modifications, side letters or agreements, to which the Seller is a party, other than Employee Plans (not including the control buildings Health Plan Policies) and the other buildings and related improvements located thereon) Employment Agreements (collectively, the “Owned Real Property”"Contracts");
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(cii) all of the substationsSeller's furnishings, control buildingsfurniture, service centers and other buildingsoffice supplies, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territoryother tangible personal property;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(fiii) all Inventoriesmarketing, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Propertysales and promotional literature, all other machinery (mobile or otherwise)books, equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studiesfinancial records, reportsbills, creative internal accounting and audit records, operating manuals, personnel records, business and strategic plans, customer and supplier lists and files, including preprinted materials, advertising and promotional materialsart work, correspondence and other writtensimilar items (excluding Tax Returns) in the possession or under the control of the Seller (the "Books and Records");
(iv) all accounts receivable and other receivables of the Seller;
(v) all rights to all of the Seller's telephone and facsimile numbers (it being understood that the telephone companies and not the Seller own such numbers);
(vi) all of the Seller's intangible assets and all Seller Intellectual Property, printed or electronic materialsincluding the Intellectual Property set forth in Section 1.1(a)(vi) of the Seller Disclosure Schedule as well as the corporate names set forth in Section 4.9 of the Seller Disclosure Schedule;
(vii) all payments, deposits (including security deposits) and prepaid expenses, claims for refunds and rights to offset in each case, respect thereof of the Seller to the extent primarily related to reflected as assets on the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influenceClosing Working Capital Statement;
(kviii) all Permits rights under warranties, representations and guarantees made by suppliers, manufacturers or contractors of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating Seller with respect to the Acquired Assets;
(mix) all Accounts Receivable Permits;
(x) all bank accounts set forth in Section 2.21 of the Seller Disclosure Schedule (it being understood that, pursuant to Section 1.1(b)(ii), any cash and Unbilled Revenuecash equivalents held in such accounts as of the Closing and the bank account to be established for receipt of the Initial Purchase Price and any subsequent payments under this Agreement shall be Retained Assets); and
(xi) all claims (including claims for past infringement of Seller Intellectual Property) and causes of action of the Seller against other Persons (regardless of whether or not such claims and causes of action have been asserted by the Seller, together with all rights to enforceare xxxxxx or inchoate, execute on known or collect the sameunknown, contingent or noncontingent), and all rights of indemnity, rights of contribution, rights to refunds, rights of reimbursement and other rights of recovery possessed by the Seller (regardless of whether such rights are currently exercisable) arising from or relating to the Customer Deposits (Acquired Assets, excluding those arising from, but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties only to the extent relating to to, the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory AssetsRetained Liabilities.
Appears in 1 contract
Samples: Asset Purchase Agreement (Pdi Inc)
Acquired Assets. On the terms and subject to the conditions of this Agreement, at At the Closing, Seller will sell, assign, convey, transfer agrees to sell and deliver to Buyer, and Buyer will purchase, assume and acquire from Seller, free and clear of all Encumbrances except for Permitted Encumbrances, all of Seller’s the right, title and interest that Seller possesses and has the right to transfer in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the “Acquired Assets”):
(a) the real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”);
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substationsassets constituting the Division (the "ACQUIRED ASSETS"), control buildingswhich includes the following: - all products and inventories, service centers tangible or intangible and other buildingsin whatever medium, fixtures and improvements located on whether raw materials, work-in-progress, samples, prototypes or finished goods provided that all finished goods shall have a minimum of fifteen (15) months until the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is expiration date thereof (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(athe "INVENTORY"); Schedule 2.1(c)(1) lists all of - to the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Propertyextent assignable, all other machinery governmental or administrative licenses, certificates, permits, approvals, and registrations (mobile or otherwisethe "PERMITS"); - all intellectual property, equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP the goodwill associated therewith, including all trademarks, service marks, trade names, including, without limitation, the name "ZILACTIN" (and that are owned by Seller derivatives), copyrights, know-how, patents, trade secrets, internet domain names, and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory telephone numbers (the “Tangible Personal Property”"INTELLECTUAL PROPERTY"); - all formulae, providedmanufacturing instructions, that with respect batch formulations, technologies, analytical methods, trade secrets, know-how, and product specifications pertaining to vehicles products (hereinafter collectively referred to as the "TECHNICAL INFORMATION") and trailers owned by Sellerall notebooks, records reports, databases (regarding stability results, release results and assay results) and other written documentation which contain or embody the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, Technical Information; <PAGE> - all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) or pursuant to the extent relating to equipment all warranties, representations and guarantees or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed from or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties manufacturers to the extent relating to the Assumed Obligations;
Business Division or the products or affecting the Acquired Assets; - all credits, prepaid expenses, deferred charges, security deposits and prepaid items listed in Schedule 2.1; - all unshipped orders as of the Closing Date; - the customer, supplier and other contracts listed on Schedule 2.1 (o) all together with the licenses to Intellectual Property described in Schedule 2.1(o) (referenced above, the “Acquired Intellectual Property”"ASSUMED AGREEMENTS");
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory ; and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned - any other tangible or intangible property used or owned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
Division Business, including, for example, customer orders, customer lists, distribution lists, price lists, operating manuals, books, records, mailing lists, advertising materials, purchasing materials and records, research and development files, litigation files and telephone, fax and data line numbers and goodwill. Schedule 2.1 sets forth a list of all Inventory, Permits, Intellectual Property (unoting what is licensed and what is owned) the rights and obligations related to Regulatory AssetsAssumed Agreements, by category.
Appears in 1 contract
Acquired Assets. On the terms and subject to the conditions set forth in this Agreement and subject to approval of this Agreementthe Bankruptcy Court pursuant to Sections 105, 363 and 365 of Bankruptcy Code, at the Closing, Closing the Seller will shall sell, assign, transfer, convey, transfer and deliver to Buyerdeliver, and Buyer will purchasecause its Affiliates (including any Selling Sub) to sell, assume assign, transfer, convey and acquire from Sellerdeliver, to the Purchaser, free and clear of all Encumbrances liens, claims, and encumbrances of any nature except for Permitted EncumbrancesExceptions, and the Purchaser shall purchase and accept from the Seller and the Selling Subs:
(a) all of Seller’s right, title and interest of the Seller and of each Selling Sub in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the “Acquired Assets”):
(a) the real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”)Interests;
(b) all right, title, and interest of Seller’s Easements the Seller and its Affiliates in and to any and all assets of every kind and description, whether tangible or intangible, real, personal or mixed, wherever situated, owned, held or used by the Seller or its Affiliates (including any Selling Sub) or in which the Seller or its Affiliates (including any Selling Sub) has any right, title or interest that is owned, directly or indirectly, leased or otherwise held primarily for use in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) except for Excluded Assets, (collectively, the “Transferred Easements”"Acquired Assets"). Without limiting the foregoing, the Acquired Assets shall include:
(i) all billed and unbilled accounts receivable (including income earned in advance), notes receivable and other evidences of indebtedness of any Person (other than the Seller or any subsidiary of the Seller) and rights to receive payments from any Person (other than the Seller or any subsidiary of the Seller), includ- ing without limitation any rights or claims with respect to third-party collection procedures to the extent arising out of the operation of the Business (the "Accounts Receivable");
(cii) all rights and incidents of interest of the Seller and of each Selling Sub to:
(A) all of the substationsmaster technology services agreements, control buildingsmaster agreements, service centers master business continuity agreements, professional services agreements, web hosting agree ments, software licensing agreements, schedules and other buildingssupplements thereto, fixtures and improvements located on oral or written (the Owned Real Property "Customer Contracts"), between the Seller (or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”one of the Selling Subs) and (ii) included a customer primarily relating to the Business, including without limitation such of the foregoing as are listed or described on Schedule 2.2(a1.1(b)(ii)(A); Schedule 2.1(c)(1;
(B) lists all of the service centers agreements, contracts and substations in arrangements, oral or written, between the Transferred Territory, whether located on Owned Real Property Seller (or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all one of the Shared Locations in Selling Subs) and a vendor or other third party providing goods or services including strategic alliances primarily relating to the Transferred Territory;
Business (d"Vendor Agreements"), including without limitation such of the foregoing as are listed or described on Schedule 1.1(b)(ii)(B) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located Vendor Agreements to the extent they relate solely to the leased real property at a facility King of Prussia, PA, 000 Xxxxxxxxx, XX, X Xxxxxxxxxx XX, Xxxxxxx, XX and Newark, NJ ("Excluded Facilities"), regardless of whether listed or described on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;1.1(b)(ii)(B); and
(gC) except for all of the Excluded Tangible Personal Propertyagreements, all other machinery contracts and arrangements between the Seller (mobile or otherwise), equipment (including computer one of the Selling Subs) and office equipment), tools, furniture the past and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will current employees but only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment confidentiality, assignment of invention or vehicles primarily related non-competition relating to the VA Distribution Business and to the extent assignable;
(iii) all Tangible Personal Property owned by, or on order to be delivered to, the Seller or a Selling Sub, that is used primarily in the Transferred Territory; providedoperation of the Business including, that with respect without limitation, (a) Tangible Personal Property located on, or to vehicles and trailers be delivered to, any Owned Real Property or premises subject to the Property Leases or premises of a customer of the Business or at an Equipment Lease, only those vehicles Excluded Facility and trailers set forth (b) such of the foregoing as are listed or described on Schedule 2.1(h1.1(b)(iii);
(iiv) all Contracts Intellectual Property used primarily in effect the operation of the Business, including without limitation the Intellectual Property listed or described in Schedule 1.1(b)(iv) and all causes of action resulting from any infringement or violation thereof (together with all Intellectual Property of the Transferred Subs, the "Acquired Intellectual Property"); provided that, Purchaser hereby grants to the Seller as of the date Closing Date a perpetual, royalty-free license to the Contract Admin software and the Prosper software on an "as is" basis with no warranty, for internal purposes;
(v) all rights and claims relating primarily to the Business, including rights and claims under all warranties, representations and guarantees made by suppliers, manufacturers and contractors in connection with the Acquired Assets;
(vi) (A) land described on Schedule 1.1(b)(vi)(A) and all buildings, other improvements and fixtures thereon and all easements, rights and appurtenances relating thereto (the "Owned Real Property"), (B) the real property leases and subleases used primarily in the operation of this Agreement the Business that are listed or described in Schedule 1.1(b)(vi)(B) (the "Property Leases"); (C) the leases and subleases that are listed and described on Schedule 1.1(b)(vi)(C) and (D) the service agreements primarily relating to the Real Property;
(vii) to the extent transferrable, all Permits issued to Seller or a Selling Sub by any Governmental Entity primarily relating to the operation of the Business, including without limitation such of the foregoing as are listed or described on Schedule 1.1(b)(vii), and all Permits relating to the ownership, use, operation and construction of the Owned Real Property and the property that is the subject of any of the Property Leases;
(viii) the preferred and common stock, warrants and other equity interests or investments that are listed or described on Schedule 1.1(b)(viii);
(ix) the bank accounts and lockbox arrangements primarily relating to the Business that are listed or described on Schedule 1.1(b)(ix) (excluding all rights or incidents of interest with respect to the cash or cash equivalents in such bank accounts or lock box arrangements prior to and as of the Closing Date);
(x) all prepaid items or deposits (including without limitation real property security deposits for real property included in the Acquired Assets whether or not listed or described on Schedule 1.1(b)(x)) existing on the Effective Date relating to the Business that are listed or described on Schedule 1.1(b)(x) or that relate primarily to the VA Distribution Business arising in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller ordinary course after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”)Effective Date;
(jxi) all customer lists goodwill primarily related to the Business;
(xii) all books and customer information databases (including customer load data); vendor lists; operational records of the Seller and performance data the Selling Subs primarily relating to the operation of the Business and reasonably required by the Seller for the Acquired Assetsoperation of the Business, GIS informationand which do not pertain to areas of the Seller's business other than the Business, books including without limitation all employment records (with respect to the Transferred Employees and subject to applicable privacy laws), sales and business records; meter reading , customer and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materialssupplier lists, advertising and promotional materials, files, indices, market research studies, analyses and similar information, marketing brochures and materials and other written, nonproprietary printed or electronic materials, written materials in each case, any form or medium relating to the extent primarily related ownership or operation of the Business that the Seller is not required by law to retain (of which the Seller may retain duplicates), and duplicates of any such materials that the Seller is required by law to retain;
(xiii) all other assets reflected on the Financial Statements (other than assets disposed of since the date thereof in the ordinary course and as permitted under this Agreement) and all other assets obtained since the date of the latest Financial Statements that would have been reflected in the Financial Statements had they been owned at the time of such Financial Statements;
(xiv) all documents, plans, data, books, records, software and other similar items relating to the VA Distribution Business in the Transferred Territory and in Seller’s possession or Real Property in the possession or control of the Seller, including, without limitation, (i) all as built plans, specifications and drawings for the Real Property, (ii) all manuals, diagrams, shop drawings, warranties and related data concerning the Real Property and the use, maintenance and operation of the systems and facilities related thereto, (iii) keys to the improvements on the Real Property, (iv) security codes, passwords and identification numbers pertaining to the operation of the Real Property, (v) books and records of the Seller pertaining to the operation, ownership, leasing, maintenance and use of the Real Property, including, without limitation, books and records with respect to payment and reconciliation of additional rent paid by tenants or subtenants under any third parties within of the Leases and paid by the Seller’s reasonable control , as tenant or influencesubtenant, under any of the Property Leases; and (vi) all computer software and computer files required to operate the building systems and security systems for Real Property;
(kxv) all Permits of Seller, including Transferable Permits, Databases owned or leased by the Seller or a Selling Sub that relate are used primarily to the VA Distribution Business in the Transferred TerritoryBusiness;
(lxvi) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenuerights, together with all rights to enforce, execute properties or assets that are listed or described on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such depositsSchedule 1.1(b)(xvi);
(nxvii) all claims, causes of action, rights of recovery, rights subrogation in respect of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) SIP Guarantees (the “Acquired Intellectual Property”"Transferred Subrogation Rights");
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(uxviii) all intercompany accounts receivable (A) owed by a Transferred Sub to the rights and obligations related Seller or its Affiliate or (B) owed by a division of Seller to Regulatory Assetsanother division of Seller arising from the operation of the Business.
Appears in 1 contract
Acquired Assets. On Subject to the terms and subject to the conditions of set forth in this Agreement, at the Closing, Seller will shall sell, convey, assign, convey, transfer and deliver to Buyer, Purchaser and Buyer will Purchaser shall purchase, assume accept, acquire and acquire from take assignment and delivery of, all right, title and interest in, to and under the following assets of Seller related directly to the Seller's EventPlus Business (collectively, the "ACQUIRED ASSETS") free and clear of all Encumbrances except for Permitted Encumbrances, all of Seller’s right, title and interest in and to the assets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the “Acquired Assets”)::
(a) all rights to revenues derived after Closing from the real property described provision of event services to accounts and customers listed on Schedule 2.1(aSCHEDULE 1.1
(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”"EVENTPLUS CUSTOMER ACCOUNTS");
(b) all the contracts with EventPlus Customer Accounts which provide for the provisioning, use and purchase of Seller’s Easements in the Transferred Territory that are primarily related event services to the VA Distribution Businessbe provided on specific dates after Closing, including the easements listed as identified on Schedule 2.1(bSCHEDULE 3.7(a)(i) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”"OPEN EVENT CONTRACTS");
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located contracts listed on SCHEDULE 3.7(a)(ii) with the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred TerritoryEventPlus Customer Accounts;
(d) any deposits associated with the Distribution FacilitiesOpen Event Contracts or other assigned contracts that have been collected prior to or on the Closing Date for event services to be provided after the Closing Date;
(e) Buyer’s Shared Equipmenta worldwide royalty free perpetual license to Seller's EventPlus(TM) software and source code (tht "EVENTPLUS SOFTWARE") used to support the registration process for the EventPlus Customer Accounts pursuant to the registration software license agreement in the form of Exhibit F (the "REGISTRATION SOFTWARE LICENSE AGREEMENT");
(f) all Inventories, but excluding those Inventories not located at a facility the toll free telecommunications access numbers listed on Schedule 2.1(c)(1SCHEDULE 1.1(f) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereofassociated with the EventPlus Business (the "ACCESS NUMBERS");
(g) except for the Excluded Tangible Personal Propertyall accounting books and records, all other machinery customer files (mobile or otherwiseincluding customer credit and collection information), equipment (including computer sales agent records and office equipment), tools, furniture sales and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in purchase correspondence relating directly to the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), providedEventPlus Business; PROVIDED, that with respect Seller may retain a copy of such records, on a confidential basis, to vehicles support its own Web Collaboration Business and trailers owned by Seller, its accounting and collection activities or any obligation arising under this Agreement or the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g)Transition Services Agreement;
(h) subject to Section 2.5all warranties, all indemnities or other rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) relating directly to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred TerritoryOpen Event Contracts; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);and,
(i) all Contracts goodwill related to, arising from or used in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance connection with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory AssetsEventPlus Business.
Appears in 1 contract
Samples: Asset Purchase Agreement (Ilinc Communications Inc)
Acquired Assets. On the terms and subject to the conditions of this Agreement, at on the ClosingClosing Date, Seller will agrees to sell, assign, convey, transfer transfer, assign and deliver deliver, and cause its Subsidiaries to sell, convey, transfer, assign and deliver, to Buyer and Buyer’s designated Affiliates, and Buyer will purchase, assume agrees to purchase and acquire cause its designated Affiliates to purchase and accept from Seller, free Seller and clear of all Encumbrances except for Permitted Encumbrancesits Subsidiaries, all of Seller’s and its Subsidiaries’ right, title and interest in and to the assets used following assets, properties, rights, contracts and claims of Seller or its Subsidiaries that are owned, leased or licensed by Seller to carry out or its VA Distribution Business Subsidiaries on the Closing Date and used in the Transferred Territory as Acquired Business (other than the Excluded Assets), in each case free and clear of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 all Encumbrances other than Permitted Encumbrances (collectively, the “Acquired Assets”):
(a) all inventories of finished goods, including any such items in transit on the real property described on Schedule 2.1(a) (including Closing Date, related exclusively to the control buildings and the other buildings and related improvements located thereon) Business (collectively, the “Owned Real PropertyInventory”);
(b) those items of machinery and equipment and other tangible personal property listed on Schedule 2.01(b) and, except as set forth on Schedule 3.09, all of Seller’s Easements other machinery and equipment used exclusively in the Transferred Territory manufacturing of the Products (collectively, the “Equipment”);
(c) the following intellectual property assets (collectively, the “Business Intellectual Property”):
(i) the registered trademarks and trademark applications listed on Schedule 2.01(c)(i), together with associated goodwill (the “Trademarks”);
(ii) all unregistered trademarks, service marks, trade dress and trade names, in each case related exclusively to the Business, together with associated goodwill;
(iii) all copyrights, all current product formulations, all raw material, manufacturing, processing, packaging, labeling, quality assurance and other specifications, and all current processing instructions, trade secrets, know-how and inventions, in each case related exclusively to the Acquired Business;
(iv) the patent application listed on Schedule 2.01(c)(iv) (the “Patent Application”); and
(v) the Internet domain names listed on Schedule 2.01(c)(v) and, to the extent transferable, the content appearing on xxx.xxxxxxxxxx.xxx/xx related exclusively to the Business (the “Exclusive Content”); provided that the Exclusive Content shall be delivered by Seller no later than 60 days after the Closing Date.
(d) all commitments, agreements and orders (subject to their terms and conditions) for the purchase of Products from Seller or any of its Subsidiaries that have not been shipped before the Closing Date (collectively, the “Purchase Orders”), as well as the portion (to the extent severable) of any other purchase orders of Seller or its Subsidiaries relating to any of the Products that have not been shipped before the Closing Date, and all rights to payments, prepayments and deposits for the Purchase Orders or such portion of such other purchase orders;
(e) the Existing Co-Pack Agreement and all other contracts, leases, licenses, commitments or agreements (other than Purchase Orders) relating exclusively to the Acquired Business or the Products (“Contracts”), to the extent freely assignable or any required third-party consents to assignment are primarily obtained but excluding the Related Party Contracts (collectively, the “Assigned Contracts”);
(f) all books and records to the extent exclusively related to the VA Distribution Acquired Business, whether in hard copy or electronic format, including the easements listed on Schedule 2.1(b) (including the control buildings technical information, computerized data, customer lists, vendor lists, service provider lists, sales and the other buildings promotional literature, catalogs and related improvements located thereonadvertising material, cost information, pricing and sales data, market surveys, purchase and sale records and correspondence for each Product, but excluding those described in Section 2.02(d) (collectively, the “Transferred EasementsInformation”); provided, that, subject to Section 5.03, Seller may retain and use copies of the Transferred Information for internal archival and reference purposes;
(g) all UPC bar codes that are listed on Schedule 2.01(g), subject to the limitations set forth thereon (the “Assigned UPC Codes”);
(ch) all of the substationspermits, control buildingsapprovals, service centers and authorizations, licenses or other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned registrations required by Seller Governmental Authorities and used or held for use by Seller primarily exclusively in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, conduct of the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred ContractsPermits”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent relating to the Assumed Obligations;
(o) all Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the PJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territorytransferable; and
(ui) all rights, causes of action, claims and credits to the extent related primarily to any Acquired Asset or any Assumed Liability from and after the Closing Date, including all guarantees, warranties, indemnities and similar rights and obligations related to Regulatory Assetsin favor of Seller or its Affiliates in respect of any Acquired Asset or any Assumed Liability.
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Acquired Assets. On the terms and subject to the conditions of set forth in this Agreement, at the Closing, Closing the Seller will shall sell, assign, transfer, convey, transfer and deliver to Buyer, and Buyer will purchase, assume and acquire from Seller, the Purchaser free and (where applicable) clear of all Encumbrances except for Permitted Encumbrancesliens, claims, interests and encumbrances of any nature, and the Purchaser shall purchase and accept from the Seller the assets of the Seller (the "Seller Assets") as hereinafter described (collectively, the assets set forth in this Section 2.1 are referred to as "Seller's Assets"). Any liens or encumbrances assumed by Purchaser are identified in Schedule 2.2:
(a) all of Seller’s legal and beneficial right, title title, and interest of the Seller, whether prospective or actual, in and to the assets Seller Assets, whether tangible or intangible, real, personal or mixed, wherever situated, owned, held or used by the Seller to carry out its VA Distribution Business or in which the Seller has any right, title or interest that is owned, directly or indirectly, leased or otherwise held primarily for use in the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, Business and specifically including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the “Acquired Assets”):
(a) the real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property”);
(b) all of Seller’s Easements in the Transferred Territory that are primarily related to the VA Distribution Business, including the easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Transferred Easements”);
(c) all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (i) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, whether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all of the Shared Locations in the Transferred Territory;
(d) the Distribution Facilities;
(e) Buyer’s Shared Equipment;
(f) all Inventories, but excluding those Inventories not located at a facility listed on Schedule 2.1(c)(1) or 2.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and that are owned by Seller and used or held for use by Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and trailers owned by Seller, the Acquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all rights of Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the VA Distribution Business in the Transferred Territory; provided, that with respect to vehicles and trailers subject to an Equipment Lease, only those vehicles and trailers set forth on Schedule 2.1(h);following:
(i) all Contracts in effect as accounts receivable arising out of the operation of the Business existing on the date of this Agreement that relate primarily to the VA Distribution Business hereof including, without limitation, those listed or described on Schedule 2.1(a)(i), or arising in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any ordinary course under the Customer Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date hereof (the "Accounts Receivable");
(ii) all rights and incidents of this Agreement interest of the Seller to:
(A) all of the services agreements between the Seller and a customer in accordance any way relating to the Business (the "Customer Contracts") existing on the date hereof or arising in the ordinary course after the date hereof and listed or described on Schedule 2.1(a)(ii)(A) (which Schedule will be provided by Purchaser prior to the Closing Date);
(B) the agreements, contracts and arrangements between the Seller and a vendor or other third party providing goods or services relating to the Business listed on Schedule 2.1(a)(ii)(B) (which Schedule will be provided by the Purchaser prior to the Closing Date);
(C) all of the rights of the Seller regarding confidentiality and/or non-competition with respect to its current and former employees; and
(iii) all equipment, computers, furniture, furnishings, fixtures, office supplies, vehicles and all other tangible personal property currently owned by, or on order to be delivered to, the terms Seller, that are used in the operation of Section 7.1the Business or are located on, but not including or to be delivered to, any owned real property or premises subject to the Power Purchase Agreements except as otherwise provided in Section 7.23 real property leases (collectively, the “Transferred Contracts”"Tangible Personal Property"), including without limitation, such of the foregoing as are listed or described on Schedule 2.1(a)(iii);
(jiv) all customer lists trade names, trademarks, registered copyrights, service marks, trademark registrations and customer information databases (including customer load data); vendor lists; operational applications, service mxxx registrations and performance data for the Acquired Assetsapplications, GIS informationcopyright registrations and applications, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, internet addresses and other written, printed or electronic materials, in each case, to the extent internet related assets used primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession operation of the Business as are listed or in described on Schedule 2.1(a)(iv) (the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits"Intellectual Property");
(nv) all claimsrights and claims under all contracts, causes of actionwarranties, representations and guarantees made by suppliers, manufacturers and contractors in connection with the Seller's Assets and all rights of recovery, rights of set off and rights of recoupment of Seller against third parties to the extent claims relating to the Assumed Obligations;
(o) all Intellectual Property Liabilities except those shown or described in on Schedule 2.1(o) (the “Acquired Intellectual Property”2.1(a)(v);
(pvi) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant all licenses, permits, authorizations and approvals issued to the PJM AgreementsSeller by any Governmental Entity relating to the operation of the Business, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share without limitation, such of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreementsforegoing as are listed or described on Schedule 2.1(a)(vii);
(qvii) rights to serve all surety bonds, collateral bonds, letters of credit, cash trusts, cash deposits or the existing certified service territory of Seller in proceeds thereof for the portion of the Commonwealth of Virginia described in Annex A heretoFinancial Assurance requirements or performance bond requirements, whether or not required under applicable Environmental Laws;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(tviii) all carbon credits books and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to records of the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory Assets.Business;
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