The Sale. Upon the terms and subject to the satisfaction of the conditions contained in this Agreement, at the Closing, Seller and Limited Partner will sell, assign, convey, transfer, and deliver to Buyer and to Buyer’s designated limited partner, and Buyer and Buyer’s designee will purchase and acquire the Company Interests from Seller as the general partner of Electric Opco and Gas Opco, and from Limited Partner as the limited partner of Electric Opco and Gas Opco (the “Interests Transfer”). Immediately prior to the Interests Transfer and the Closing, Seller will transfer and cause the Companies to acquire from Seller, subject to all Encumbrances except for Non-Permitted Encumbrances, all of Seller’s right, title, and interest in, to, and under the real and personal property, tangible or intangible, principally related to the Business, including as described below, as the same exists at the Closing (and, as applicable and as permitted or contemplated hereby, or as Buyer and Parent agree, with such additions and eliminations of assets as shall occur from the date hereof through the Closing), except to the extent that such assets are Excluded Assets (collectively, the “Purchased Assets”): (a) Seller’s real property and real property interests located in Colorado, including (i) as described on Schedule 2.1(a), (ii) buildings, structures, other improvements, and fixtures located thereon, (iii) all rights, privileges, easements and appurtenances thereto, the leasehold and subleasehold interests under the leases described on Schedule 5.9, (iv) the Easements to be conveyed at the Closing pursuant to Section 8.5(a), and (v) any installation, facility, plant (including any manufactured gas plant), or site (including any manufactured gas plant site) described on Schedule 2.1(a) that (A) at the Closing is operated, owned, leased, or otherwise under the control of or attributed to Seller or the Business, and (B) is located in the Territory (collectively, the “Real Property”); (b) the accounts receivable and inventories owned by Seller and principally related to the Business, and other similar or related items principally related to the Business; (c) the Documents; (d) the machinery, equipment, vehicles, furniture, pipeline system, natural gas, distribution assets, electrical distribution assets, and other tangible personal property owned by Seller and used principally in the Business, including the vehicles and equipment listed on Schedule 2.1(d) to be attached to the Agreement prior to July 1, 2007, and all warranties against manufacturers or vendors relating thereto; (e) the Business Agreements and the Franchises; (f) the Allocated Rights and Obligations to the extent transferred to the Companies pursuant to Section 8.5(d); (g) the Permits, in each case to the extent the same are assignable (the “Transferable Permits”); (h) the severance compensation agreements, if any, between Seller and the Business Employees, as applicable (the “Severance Compensation Agreements”); (i) the Environmental Permits, including those listed on Schedule 5.10(a)-2, in each case to the extent the same are assignable (the “Transferable Environmental Permits”); (j) in addition to the claims, rights and proceeds described in Section 2.1(r), to the extent (i) Seller has received any insurance proceeds from settlements with insurance providers prior to the date hereof relating to costs to clean-up any Real Property as required under any Environmental Laws, including any manufactured gas plant sites acquired by Buyer pursuant to this Agreement, and (ii) such clean-up costs have not been incurred prior to the Closing Date, a pro-rata share of such proceeds to be allocated to the Real Property based upon the estimated clean-up costs of all similar sites of Seller covered by such proceeds; (k) any refund or credit related to Taxes paid by or on behalf of Seller for which Buyer is liable pursuant to Section 8.7, whether such refund is received as a payment or as a credit against future Taxes payable; (l) Claims and defenses of Seller to the extent such Claims or defenses arise principally with respect to the Purchased Assets or the Assumed Obligations, provided that any such Claims and defenses will be assigned to the Companies without warranty or recourse; (m) assets transferred pursuant to Section 8.8; (n) any other assets owned by Seller and set forth on Schedule 2.1(n); (o) assets included in the FERC Accounts upon which the Selected Balance Sheet Information was prepared; (p) any credits, benefits, emissions reductions, offsets and allowances with respect to any Environmental Laws purchased by or granted or issued to Seller for use by or with respect to the Business or the Purchased Assets; (q) any other assets of Seller used principally in the Business; and (r) any claims or rights under or proceeds of Seller’s insurance policies to the extent related to the Business, the Purchased Assets or the Assumed Obligations, including claims, rights or proceeds contemplated by Section 8.9(b).
Appears in 2 contracts
Samples: Partnership Interests Purchase Agreement, Partnership Interests Purchase Agreement (Black Hills Corp /Sd/)
The Sale. Upon the terms and subject to the satisfaction or waiver of the conditions contained in this Agreement, at the Closing, Seller and Limited Partner will sell, assign, convey, transfer, and deliver to Buyer Buyer, free and to Buyer’s designated limited partnerclear of all Encumbrances (except for Permitted Encumbrances), and Buyer and Buyer’s designee will purchase and acquire the Company Interests from Seller as the general partner of Electric Opco and Gas Opco, and from Limited Partner as the limited partner of Electric Opco and Gas Opco (the “Interests Transfer”). Immediately prior to the Interests Transfer and the Closing, Seller will transfer and cause the Companies to acquire from Seller, subject to all Encumbrances except for Non-Permitted Encumbrances, all of Seller’s right, title, and interest in, to, and under the real and personal property, tangible or intangible, principally related to the Business, including as described below, as the same exists at the Closing (and, as applicable and as permitted or contemplated hereby, or as Buyer and Parent agree, with such additions and eliminations of assets as shall occur from the date hereof through the Closing), except to the extent that such assets are Excluded Assets (collectively, the “Purchased Assets”):
(a) Seller’s real property and real property interests located in Colorado, including (i) as described on Schedule 2.1(a), (ii) buildings, structures, other improvements, and fixtures located thereon, (iii) all rights, privileges, easements and appurtenances thereto, the leasehold and subleasehold interests under the leases described on Schedule 5.9, (iv) the Easements to be conveyed at the Closing pursuant to Section 8.5(a), and (v) any installation, facility, plant (including any manufactured gas plant), or site (including any manufactured gas plant site) described on Schedule 2.1(a) that (A) at the Closing is operated, owned, leased, or otherwise under the control of or attributed to Seller or the Business, and (B) is located in the Territory (collectively, the “Real Property”)Purchased Transmission Assets;
(b) the accounts receivable and inventories owned by inventory of Seller and principally related to the Business, and other similar or related items principally related to the Businessidentified in Schedule 2.1(b);
(c) the Documents;
(d) the machinery, equipment, vehicles, furniture, pipeline system, natural gas, distribution assets, electrical distribution assets, and other tangible personal property owned by Seller and used principally in the Business, including the vehicles and equipment listed on Schedule 2.1(d) to be attached to the Agreement prior to July 1, 2007, and all warranties against manufacturers or vendors relating thereto);
(e) to the Business Agreements extent commercially practicable, only that portion of each Purchased Agreement that relates to Transmission, and otherwise, the FranchisesPurchased Agreements;
(f) the Allocated Rights Permits listed on Schedule 5.12(a), and Obligations to all other Permits primarily used by Seller in the extent transferred to ownership and operation of the Companies pursuant to Section 8.5(d);
(g) the Permits, in each case to the extent the same are assignable Purchased Assets (the “Transferable Permits”);
(h) the severance compensation agreements, if any, between Seller and the Business Employees, as applicable (the “Severance Compensation Agreements”);
(ig) the Environmental Permits, including those Permits listed on Schedule 5.10(a)-2, 5.9(a)-2 and all other Environmental Permits primarily used by Seller in each case to the extent ownership and operation of the same are assignable Purchased Assets (the “Transferable Environmental Permits”);
(j) in addition to the claims, rights and proceeds described in Section 2.1(r), to the extent (i) Seller has received any insurance proceeds from settlements with insurance providers prior to the date hereof relating to costs to clean-up any Real Property as required under any Environmental Laws, including any manufactured gas plant sites acquired by Buyer pursuant to this Agreement, and (ii) such clean-up costs have not been incurred prior to the Closing Date, a pro-rata share of such proceeds to be allocated to the Real Property based upon the estimated clean-up costs of all similar sites of Seller covered by such proceeds;
(k) any refund or credit related to Taxes paid by or on behalf of Seller for which Buyer is liable pursuant to Section 8.7, whether such refund is received as a payment or as a credit against future Taxes payable;
(lh) Claims and defenses of Seller to the extent such Claims or defenses arise principally primarily with respect to the Purchased Assets Assumed Obligations or the Assumed ObligationsPurchased Assets, provided that any such Claims and defenses will be assigned to the Companies Buyer without warranty or recourse, other than pursuant to the representations and warranties contained in this Agreement;
(mi) any assets transferred acquired by Seller pursuant to Section 8.8;
(n7.4(d) any other assets owned by Seller and set forth on Schedule 2.1(n);
(o) assets included for inclusion in the FERC Accounts upon which the Selected Balance Sheet Information was prepared;
(p) any credits, benefits, emissions reductions, offsets and allowances with respect to any Environmental Laws purchased by or granted or issued to Seller for use by or with respect to the Business or the Purchased Assets;
(qj) any other assets of Seller used principally the software set forth on Schedule 2.1(j);
(k) all warranties pertaining to the Purchased Assets and set forth in Schedule 2.1(k);
(l) the BusinessShared Easement Rights; and
(rm) any claims all assets to be transferred by, or rights under on behalf of, Seller and its Affiliates to, or proceeds of Seller’s insurance policies to the extent related to the Businesson behalf of, the Purchased Assets Buyer or the Assumed Obligations, including claims, rights or proceeds contemplated by Section 8.9(b)its Affiliates in accordance with Article VIII.
Appears in 2 contracts
Samples: Asset Sale Agreement (ITC Holdings Corp.), Asset Sale Agreement (Interstate Power & Light Co)
The Sale. Upon the terms and subject to the satisfaction of the conditions contained in this Agreement, at the Closing, Seller and Limited Partner will sell, assign, convey, transfer, and deliver to Buyer and to Buyer’s designated limited partner, and Buyer and Buyer’s designee will purchase and acquire the Company Interests from Seller as the general partner of Electric Opco and Gas Opco, and from Limited Partner as the limited partner of Electric Opco and Gas Opco (the “Interests Transfer”). Immediately prior to the Interests Transfer and the Closing, Seller will transfer and cause the Companies to acquire from Seller, subject to all Encumbrances except for Non-Permitted Encumbrances, all of Seller’s right, title, and interest in, to, and under the real and personal property, tangible or intangible, principally related to the Business, including as described below, as the same exists at the Closing (and, as applicable and as permitted or contemplated hereby, or as Buyer and Parent agree, with such additions and eliminations of assets as shall occur from the date hereof through the Closing), except to the extent that such assets are Excluded Assets (collectively, the “Purchased Assets”):
(a) Seller’s real property and real property interests located in Colorado, including (i) as described on Schedule 2.1(a), (ii) buildings, structures, other improvements, and fixtures located thereon, (iii) all rights, privileges, easements and appurtenances thereto, the leasehold and subleasehold interests under the leases described on Schedule 5.9, (iv) the Easements to be conveyed at the Closing pursuant to Section 8.5(a), and (v) any installation, facility, plant (including any manufactured gas plant), or site (including any manufactured gas gas
1- LA/917645.9 16 plant site) described on Schedule 2.1(a) that (A) at the Closing is operated, owned, leased, or otherwise under the control of or attributed to Seller or the Business, and (B) is located in the Territory (collectively, the “Real Property”);
(b) the accounts receivable and inventories owned by Seller and principally related to the Business, and other similar or related items principally related to the Business;
(c) the Documents;
(d) the machinery, equipment, vehicles, furniture, pipeline system, natural gas, distribution assets, electrical distribution assets, and other tangible personal property owned by Seller and used principally in the Business, including the vehicles and equipment listed on Schedule 2.1(d) to be attached to the Agreement prior to July 1, 2007, and all warranties against manufacturers or vendors relating thereto;
(e) the Business Agreements and the Franchises;
(f) the Allocated Rights and Obligations to the extent transferred to the Companies pursuant to Section 8.5(d);
(g) the Permits, in each case to the extent the same are assignable (the “Transferable Permits”);
(h) the severance compensation agreements, if any, between Seller and the Business Employees, as applicable (the “Severance Compensation Agreements”);
(i) the Environmental Permits, including those listed on Schedule 5.10(a)-2, in each case to the extent the same are assignable (the “Transferable Environmental Permits”);
(j) in addition to the claims, rights and proceeds described in Section 2.1(r), to the extent (i) Seller has received any insurance proceeds from settlements with insurance providers prior to the date hereof relating to costs to clean-up any Real Property as required under any Environmental Laws, including any manufactured gas plant sites acquired by Buyer pursuant to this Agreement, and (ii) such clean-up costs have not been incurred prior to the Closing Date, a pro-rata share of such proceeds to be allocated to the Real Property based upon the estimated clean-up costs of all similar sites of Seller covered by such proceeds;
(k) any refund or credit related to Taxes paid by or on behalf of Seller for which Buyer is liable pursuant to Section 8.7, whether such refund is received as a payment or as a credit against future Taxes payable;
(l) Claims and defenses of Seller to the extent such Claims or defenses arise principally with respect to the Purchased Assets or the Assumed Obligations, provided that any such Claims and defenses will be assigned to the Companies without warranty or recourse;
(m) assets transferred pursuant to Section 8.8;
(n) any other assets owned by Seller and set forth on Schedule 2.1(n);
(o) assets included in the FERC Accounts upon which the Selected Balance Sheet Information was prepared;
(p) any credits, benefits, emissions reductions, offsets and allowances with respect to any Environmental Laws purchased by or granted or issued to Seller for use by or with respect to the Business or the Purchased Assets;
(q) any other assets of Seller used principally in the Business; and
(r) any claims or rights under or proceeds of Seller’s insurance policies to the extent related to the Business, the Purchased Assets or the Assumed Obligations, including claims, rights or proceeds contemplated by Section 8.9(b).
Appears in 1 contract
Samples: Partnership Interests Purchase Agreement (Aquila Inc)
The Sale. Upon the terms and subject to the satisfaction of the conditions contained in this Agreement, at the Closing, Seller and Limited Partner will sell, assign, convey, transfer, transfer and deliver to Buyer and to Buyer’s designated limited partner, and Buyer and Buyer’s designee will purchase and acquire the Company Interests from Seller as the general partner of Electric Opco and Gas Opco, and from Limited Partner as the limited partner of Electric Opco and Gas Opco (the “Interests Transfer”). Immediately prior to the Interests Transfer and the Closing, Seller will transfer and cause the Companies to acquire from Seller, subject to all Encumbrances except for Non-Permitted Encumbrances, all of Seller’s right, title, and interest in, to, and under the real and personal property, tangible or intangible, principally related to the Business, including as described below, as the same exists at the Closing (and, as applicable and as permitted or contemplated hereby, or as Buyer and Parent agree, with such additions and eliminations of assets as shall occur from the date hereof through the Closing), except to the extent that such assets are Excluded Assets (collectively, the “Purchased Assets”):
(a) Seller’s real property and real property interests located in ColoradoIowa, Kansas (other than real property or real property interests principally related to Seller’s electric utility business in Kansas) and Nebraska, including (i) as described on Schedule 2.1(a), (ii) buildings, structures, other improvements, and fixtures located thereon, (iii) all rights, privileges, easements and appurtenances thereto, the leasehold and subleasehold interests under the leases described on Schedule 5.9, (iv) the Easements to be conveyed at the Closing pursuant to Section 8.5(a), and (v) any installation, facility, plant (including any manufactured gas plant), or site (including any manufactured gas plant site) described on Schedule 2.1(a) that (A) at the Closing is operated, ,
1- LA/903877.26 owned, leased, or otherwise under the control of or attributed to any of Seller or the Business, and (B) is located in the Territory Territories (collectively, the “Real Property”);
(b) the accounts receivable and inventories owned by Seller and principally related to the Business, and other similar or related items principally related to the Business;
(c) the Documents;
(d) the machinery, equipment, vehicles, furniture, pipeline system, natural gas, distribution assets, electrical gas distribution assets, and other tangible personal property owned by Seller and used principally in the Business, including the vehicles and equipment listed on Schedule 2.1(d) to be attached to the Agreement prior to July 1, 2007, and all warranties against manufacturers or vendors relating thereto;
(e) the Business Agreements and the Franchises;
(f) the Allocated Rights and Obligations to the extent transferred to the Companies Buyer pursuant to Section 8.5(d);
(g) the Permits, in each case to the extent the same are assignable (the “Transferable Permits”);
(h) the severance compensation agreements, if any, between Seller and the Business Employees, as applicable (the “Severance Compensation Agreements”);
(i) the Environmental Permits, including those listed on Schedule 5.10(a)-2, in each case to the extent the same are assignable (the “Transferable Environmental Permits”);
(j) in addition to the claims, rights and proceeds described in Section 2.1(r), to the extent (i) Seller has received any insurance proceeds from settlements with insurance providers prior to the date hereof relating to costs to clean-up any Real Property as required under any Environmental Laws, including any manufactured gas plant sites acquired by Buyer pursuant to this Agreement, and (ii) such clean-up costs have not been incurred prior to the Closing Date, a pro-rata share of such proceeds to be allocated to the Real Property based upon the estimated clean-up costs of all similar sites of Seller covered by such proceeds;
(k) any refund or credit related to Taxes paid by or on behalf of Seller for which Buyer is liable pursuant to Section 8.7, whether such refund is received as a payment or as a credit against future Taxes payable;
(l) Claims and defenses of Seller to the extent such Claims or defenses arise principally with respect to the Purchased Assets or the Assumed Obligations, provided that any such Claims and defenses will be assigned to the Companies Buyer without warranty or recourse;
(m) assets transferred pursuant to Section 8.8;
(n) any other assets owned by Seller and set forth on Schedule 2.1(n);
1- LA/903877.26
(o) assets included in the FERC Accounts upon which the Selected Balance Sheet Information was prepared;
(p) any credits, benefits, emissions reductions, offsets and allowances with respect to any Environmental Laws purchased by or granted or issued to Seller for use by or with respect to the Business or the Purchased Assets;
(q) any other assets of Seller used principally in the Business; and
(r) any claims or rights under or proceeds of Seller’s insurance policies to the extent related to the Business, the Purchased Assets or the Assumed Obligations, including claims, rights or proceeds contemplated by Section 8.9(b).
Appears in 1 contract
The Sale. Upon the terms and subject to the satisfaction of the conditions contained in this Agreement, at the Closing, Seller and Limited Partner will sell, assign, convey, transfer, and deliver to Buyer and to Buyer’s designated limited partner, and Buyer and Buyer’s designee will purchase and acquire the Company Interests from Seller as the general partner of Electric Opco and Gas Opco, and from Limited Partner as the limited partner of Electric Opco and Gas Opco (the “Interests Transfer”). Immediately prior to the Interests Transfer and the Closing, Seller will transfer and cause the Companies to acquire from Seller, subject to free and clear of all Encumbrances (except for Non-Permitted Encumbrances), all of Seller’s 's right, title, and interest in, to, and under the real and personal property, tangible or intangible, principally related to the Business, including as described below, as the same exists at the Closing Effective Time (and, as applicable and as permitted or contemplated hereby, or as Buyer and Parent agree, with such additions and eliminations of assets deletions as shall will occur from the date hereof through the ClosingEffective Time), except to the extent that such assets are Excluded Assets (collectively, the “"Purchased Assets”"):
(a) Seller’s the real property and real property interests located in Colorado, including (i) as described on Schedule 2.1(a), (ii) including buildings, structures, other improvements, and fixtures located thereon, (iii) all rights, privileges, easements and appurtenances thereto, the leasehold and subleasehold interests under the leases described on Schedule 5.95.9 (to the extent such leasehold and subleasehold interests are assignable), (iv) and the Easements and Shared Easement Rights to be conveyed at the Closing pursuant to Section 8.5(a), 7.4(b) (to the extent such Easements and (vShared Easement Rights are assignable) any installation, facility, plant (including any manufactured gas plant), or site (including any manufactured gas plant site) described on Schedule 2.1(a) that (A) at the Closing is operated, owned, leased, or otherwise under the control of or attributed to Seller or the Business, and (B) is located in the Territory (collectively, the “"Real Property”");
(b) the accounts receivable and inventories owned by Seller and principally related to the Business, and other similar or related items principally related to the Business, all as reflected in the applicable FERC Accounts set forth on Exhibit 3.1;
(c) the Documents;
(d) the machinery, equipment, vehicles, furniture, pipeline system, natural gas, distribution assets, electrical distribution assets, and other tangible personal property owned by Seller and used principally in the Business, including the vehicles and equipment listed on Schedule 2.1(d) to be attached to the Agreement prior to July 1, 2007), and all warranties against manufacturers or vendors relating thereto, to the extent that such warranties are freely transferable;
(e) the Business Agreements and the Franchises, in each case, to the extent the same are assignable;
(f) the Allocated Rights and Obligations to the extent transferred to the Companies Buyer pursuant to Section 8.5(d7.4(e);
(g) the PermitsPermits listed on Schedule 5.15, in each case to the extent the same are assignable (the “"Transferable Permits”");
(h) the severance compensation agreements, if any, between Seller and the Business Employees, as applicable (the “Severance Compensation Agreements”);
(i) the Environmental Permits, including those Permits listed on Schedule 5.10(a)-2, in each case to the extent the same are assignable (the “"Transferable Environmental Permits”");; <PAGE>
(j) in addition to the claims, rights and proceeds described in Section 2.1(r), to the extent (i) Seller has received any insurance proceeds from settlements with insurance providers prior to the date hereof relating to costs to clean-up any Real Property as required under any Environmental Laws, including any manufactured gas plant sites acquired by Buyer pursuant to this Agreement, and (ii) such clean-up costs have not been incurred prior to the Closing Date, a pro-rata share of such proceeds to be allocated to the Real Property based upon the estimated clean-up costs of all similar sites of Seller covered by such proceeds;
(k) any refund or credit related to Taxes paid by or on behalf of Seller for which Buyer is liable pursuant to Section 8.7, whether such refund is received as a payment or as a credit against future Taxes payable;
(l) Claims and defenses of Seller to the extent such Claims or defenses arise principally with respect to the Purchased Assets or the Assumed Obligations, provided that any such Claims and defenses will be assigned to the Companies Buyer without warranty or recourse;
(mj) any assets acquired by Seller pursuant to Section 7.4(d) for inclusion in the Purchased Assets;
(k) assets transferred pursuant to Section 8.87.9;
(nl) assets set forth on Schedule 2.1(l); and
(m) any other assets owned by Seller and set forth on Schedule 2.1(n);
(o) assets included in the FERC Accounts upon which the Selected Balance Sheet Information was prepared;
(p) any credits, benefits, emissions reductions, offsets and allowances with respect to any Environmental Laws purchased by or granted or issued to Seller for use by or with respect to the Business or the Purchased Assets;
(q) any other assets of Seller used principally in the Business; and
(r) any claims or rights under or proceeds of Seller’s insurance policies to the extent related to the Business, the Purchased Assets or the Assumed Obligations, including claims, rights or proceeds contemplated by Section 8.9(b).
Appears in 1 contract
The Sale. Upon the terms and subject to the satisfaction of the conditions contained in this Agreement, at the Closing, Seller and Limited Partner will sell, assign, convey, transfer, and deliver to Buyer and to Buyer’s designated limited partner, and Buyer and Buyer’s designee will purchase and acquire the Company Interests from Seller as the general partner of Electric Opco and Gas Opco, and from Limited Partner as the limited partner of Electric Opco and Gas Opco (the “Interests Transfer”). Immediately prior to the Interests Transfer and the Closing, Seller will transfer and cause the Companies to acquire from Seller, subject to free and clear of all Encumbrances (except for Non-Permitted Encumbrances), all of Seller’s right, title, and interest in, to, and under the real and assets, real, personal propertyor mixed, tangible or intangible, principally related to the Business, including as described below, as the same exists exist at the Closing Effective Time (and, as applicable and as permitted or contemplated hereby, or as Buyer and Parent agree, with such additions and eliminations of assets deletions as shall may occur from the date hereof through the ClosingEffective Time), except to the extent that such assets are Excluded Assets (collectively, the “Purchased Assets”):
(a) Seller’s those certain parcels of real property owned by Seller together with all buildings, structures, facilities, the improvements and real property interests located in Colorado, including (i) as fixtures thereon and appurtenances thereto described on Schedule 2.1(a), (ii) buildings, structures, other improvements, and fixtures located thereon, (iii) all rights, privileges, easements and appurtenances thereto, such additional parcels of real property acquired by Seller after the leasehold and subleasehold interests under the leases described on Schedule 5.9, (iv) the Easements to be conveyed at the Closing pursuant to Section 8.5(a), and (v) any installation, facility, plant (including any manufactured gas plant), or site (including any manufactured gas plant site) described on Schedule 2.1(a) that (A) at the Closing is operated, owned, leased, or otherwise under the control of or attributed to Seller or the Business, and (B) is located date hereof for use exclusively in the Territory Business (collectively, the “Owned Real Property”);
(b) the accounts receivable and inventories owned by real property leases under which Seller and principally related to is a lessor or lessee listed on Schedule 2.1(b) (the Business, and other similar or related items principally related to the Business“Real Property Leases”);
(c) the Easements and Shared Easement Rights to be conveyed at the Closing pursuant to Section 7.4(b);
(d) subject to Section 7.1(c), the accounts receivable (including all related checks in transit) and earned but unbilled revenues owned by Seller and exclusively related to the Business; for the purposes of this Agreement, “checks in transit” shall mean checks with respect to which a corresponding amount has not yet been debited from accounts receivable and credited to cash and cash equivalents in accordance with Seller’s customary accounting practices;
(e) all Inventories;
(f) the Documents;
(dg) the machinery, equipment, vehicles, furniture, pipeline system, natural gas, distribution assets, electrical distribution assetsfacilities, and other tangible personal property owned by Seller and used principally exclusively in the Business, including all computing and telecommunications infrastructure used exclusively in the vehicles Business, such as switches, routers, servers and desktop and mobile computing equipment listed on Schedule 2.1(dlocated within each facility located at any Owned Real Property or at any facility at any property subject to any Real Property Lease (“Leased Real Property”) to be attached to the Agreement prior to July 1, 2007, and all warranties against manufacturers or vendors relating theretoTransferred Employee Equipment (provided, that such Transferred Employee Equipment shall constitute a Purchased Asset only upon the Transfer Date for such Transferred Employee) (the “Tangible Personal Property”);
(eh) the Business Agreements and the Franchises;
(fi) the Allocated Rights and Obligations to the extent transferred to the Companies Buyer pursuant to Section 8.5(d7.4(e);
(gj) the PermitsPermits related exclusively to the Business, including the Permits listed on Schedule 5.11, in each case to the extent the same are assignable transferable (the “Transferable Permits”);
(h) the severance compensation agreements, if any, between Seller and the Business Employees, as applicable (the “Severance Compensation Agreements”);
(ik) the Environmental PermitsPermits related exclusively to the Business, including those the Environmental Permits listed on Schedule 5.10(a)-25.6(a)-2, in each case to the extent the same are assignable transferable (the “Transferable Environmental Permits”);
(j) in addition to the claims, rights and proceeds described in Section 2.1(r), to the extent (i) Seller has received any insurance proceeds from settlements with insurance providers prior to the date hereof relating to costs to clean-up any Real Property as required under any Environmental Laws, including any manufactured gas plant sites acquired by Buyer pursuant to this Agreement, and (ii) such clean-up costs have not been incurred prior to the Closing Date, a pro-rata share of such proceeds to be allocated to the Real Property based upon the estimated clean-up costs of all similar sites of Seller covered by such proceeds;
(k) any refund or credit related to Taxes paid by or on behalf of Seller for which Buyer is liable pursuant to Section 8.7, whether such refund is received as a payment or as a credit against future Taxes payable;
(l) Claims and defenses of Seller to the extent such Claims or defenses arise principally with respect relate exclusively to the Purchased Assets or the Assumed Obligations, provided that and all guaranties, warranties, indemnities and similar rights in favor of Seller exclusively related to any such Claims and defenses will be assigned to the Companies without warranty Purchased Asset or recourseany Assumed Obligation;
(m) assets transferred pursuant to Section 8.8the Supervisory Control and Data Acquisition (“SCADA”) software set forth on Schedule 2.1(m);
(n) any other assets owned by all software, software licenses, information systems, interfaces and management systems of Seller and set forth used exclusively in the Business (including internally-developed information systems), including those on Schedule 2.1(n);
(o) assets included in all credits, prepaid expenses, deferred charges, advance payments, security deposits and prepaid items that are related exclusively to the FERC Accounts upon which the Selected Balance Sheet Information was preparedBusiness;
(p) the Telecommunications Network Elements and Shared Telecommunications Network Element Rights, including the FCC licenses listed on Schedule 2.1(p);
(q) all customer deposits, customer advances for construction and other similar items related exclusively to the Business;
(r) the regulatory related assets of Seller described on Schedule 2.1(r);
(s) assets transferred pursuant to Section 7.9;
(t) all pxxxx cash and cash drawer held locally for the benefit of the Business;
(u) all Surety Instruments other than Seller Common Surety Instruments;
(v) all patents (including all reissues, divisions, continuations and extensions thereof), patent applications, patent rights, copyrights, copyright registrations, and all rights to any of the foregoing (“Intellectual Property”), owned by Seller that relate exclusively to the Business (such Intellectual Property being the “Assigned Intellectual Property”);
(w) all trade secrets, confidential information and know-how of Seller that relate exclusively to the Business (the “Technology”);
(x) all assets reflected on the Interim Balance Sheet, other than any such assets (A) disposed of to a third party since the date of the Interim Balance Sheet or (B) utilized or consumed by the Business, or converted to cash, in the ordinary course of business since the date of the Interim Balance Sheet or as otherwise permitted by the terms of this Agreement;
(y) all credits, benefits, emissions reductions, offsets and allowances with respect to any Environmental Laws purchased by or granted or issued to Seller exclusively for use by or exclusively with respect to the Business or the Purchased Assets;
(qz) any other assets of Seller used principally in all goodwill generated by or associated with the Business; and
(raa) any claims all other assets owned by or rights under leased or proceeds of Seller’s insurance policies licensed to the extent related to Seller and used exclusively in, or arising exclusively out of, the Business, the Purchased Assets or the Assumed Obligations, including claims, rights or proceeds contemplated by Section 8.9(b).
Appears in 1 contract
Samples: Asset Purchase Agreement (Public Service Co of New Mexico)
The Sale. Upon the terms and subject to the satisfaction of the conditions contained in this Agreement, at the Closing, Seller and Limited Partner will sell, assign, convey, transfer, and deliver to Buyer and to Buyer’s designated limited partner, and Buyer and Buyer’s designee will purchase and acquire the Company Interests from Seller as the general partner of Electric Opco and Gas Opco, and from Limited Partner as the limited partner of Electric Opco and Gas Opco (the “Interests Transfer”). Immediately prior to the Interests Transfer and the Closing, Seller will transfer and cause the Companies to acquire from Seller, subject to free and clear of all Encumbrances (except for Non-Permitted Encumbrances), all of Seller’s right, title, and interest in, to, and under the real and personal property, tangible or intangible, principally related to the Business, including as described below, as the same exists at the Closing Effective Time (and, as applicable and as permitted or contemplated hereby, or as Buyer and Parent agree, with such additions and eliminations of assets deletions as shall may occur from the date hereof through the ClosingEffective Time), except to the extent that such assets are Excluded Assets (collectively, the “Purchased Assets”):
(a) Seller’s the real property and real property interests located in Colorado, including (i) as described on Schedule 2.1(a), (ii) including buildings, structures, other improvements, and fixtures located thereon, (iii) all rights, privileges, easements and appurtenances thereto, the leasehold and subleasehold interests under the leases described on Schedule 5.95.9 (to the extent such leasehold and subleasehold interests are assignable), (iv) and the Easements and Shared Easement Rights to be conveyed at the Closing pursuant to Section 8.5(a), 7.4(b) (to the extent such Easements and (vShared Easement Rights are assignable) any installation, facility, plant (including any manufactured gas plant), or site (including any manufactured gas plant site) described on Schedule 2.1(a) that (A) at the Closing is operated, owned, leased, or otherwise under the control of or attributed to Seller or the Business, and (B) is located in the Territory (collectively, the “Real Property”);
(b) the accounts receivable receivable, billed and inventories owned by Seller and principally related to the Businessunbilled, inventories, and other similar or related items principally related to assets, in each case, as reflected in the Businessapplicable FERC Accounts;
(c) the Documents;
(d) all assets reflected in Net Plant as set forth on Exhibit 3.1. and, to the extent not reflected in Net Plant, the machinery, equipment, vehicles, furniture, pipeline system, natural gas, distribution assets, electrical distribution assets, system and other tangible personal property owned by Seller and used principally in the Business, including the vehicles and equipment listed on Schedule 2.1(d) to be attached to the Agreement prior to July 1, 2007), and all warranties against manufacturers or vendors relating thereto, to the extent that such warranties are freely transferable;
(e) the Business Agreements and the Franchises, in each case, to the extent the same are assignable;
(f) the Allocated Rights and Obligations to the extent transferred to the Companies Buyer pursuant to Section 8.5(d7.4(e);
(g) the PermitsPermits listed on Schedule 5.15, in each case to the extent the same are assignable (the “Transferable Permits”);
(h) the severance compensation agreements, if any, between Seller and the Business Employees, as applicable (the “Severance Compensation Agreements”);
(i) the Environmental Permits, including those Permits listed on Schedule 5.10(a)-2, in each case to the extent the same are assignable (the “Transferable Environmental Permits”);
(j) in addition to the claims, rights and proceeds described in Section 2.1(r), to the extent (i) Seller has received any insurance proceeds from settlements with insurance providers prior to the date hereof relating to costs to clean-up any Real Property as required under any Environmental Laws, including any manufactured gas plant sites acquired by Buyer pursuant to this Agreement, and (ii) such clean-up costs have not been incurred prior to the Closing Date, a pro-rata share of such proceeds to be allocated to the Real Property based upon the estimated clean-up costs of all similar sites of Seller covered by such proceeds;
(k) any refund or credit related to Taxes paid by or on behalf of Seller for which Buyer is liable pursuant to Section 8.7, whether such refund is received as a payment or as a credit against future Taxes payable;
(l) Claims and defenses of Seller to the extent such Claims or defenses arise principally solely with respect to the Purchased Assets or the Assumed Obligations, provided that any such Claims and defenses will be assigned to the Companies Buyer without warranty or recourse;
(mj) any assets acquired by Seller pursuant to Section 7.4(d) for inclusion in the Purchased Assets;
(k) assets transferred pursuant to Section 8.8;7.9; and
(nl) any other assets owned by Seller and set forth on Schedule 2.1(n);
(o) assets included in the FERC Accounts upon which the Selected Balance Sheet Information was prepared;
(p) any credits, benefits, emissions reductions, offsets and allowances with respect to any Environmental Laws purchased by or granted or issued to Seller for use by or with respect to the Business or the Purchased Assets;
(q) any other assets of Seller used principally in the Business; and
(r) any claims or rights under or proceeds of Seller’s insurance policies to the extent related to the Business, the Purchased Assets or the Assumed Obligations, including claims, rights or proceeds contemplated by Section 8.9(b).
Appears in 1 contract
Samples: Asset Purchase Agreement (Empire District Electric Co)
The Sale. Upon the terms and subject to the satisfaction of the conditions contained in this Agreement, at the Closing, Seller and Limited Partner will sell, assign, convey, transfer, and deliver to Buyer and to Buyer’s designated limited partner, and Buyer and Buyer’s designee will purchase and acquire the Company Interests from Seller as the general partner of Electric Opco and Gas Opco, and from Limited Partner as the limited partner of Electric Opco and Gas Opco (the “Interests Transfer”). Immediately prior to the Interests Transfer and the Closing, Seller will transfer and cause the Companies to acquire from Seller, subject to free and clear of all Encumbrances (except for Non-Permitted Encumbrances), all of Seller’s 's right, title, and interest in, to, and under the real and personal property, tangible or intangible, principally related to the Business, including as described below, as the same exists at the Closing Effective Time (and, as applicable and as permitted or contemplated hereby, or as Buyer and Parent agree, with such additions and eliminations of assets deletions as shall will occur from the date hereof through the ClosingEffective Time), except to the extent that such assets are Excluded Assets (collectively, the “"Purchased Assets”"):
(a) Seller’s the real property and real property interests located in Colorado, including (i) as described on Schedule 2.1(a), (ii) including buildings, structures, other improvements, and fixtures located thereon, (iii) all rights, privileges, easements and appurtenances thereto, the leasehold and subleasehold interests under the leases described on Schedule 5.95.9 (to the extent such leasehold and subleasehold interests are assignable), (iv) and the Easements and Shared Easement Rights to be conveyed at the Closing pursuant to Section 8.5(a), 7.4(b) (to the extent such Easements and (vShared Easement Rights are assignable) any installation, facility, plant (including any manufactured gas plant), or site (including any manufactured gas plant site) described on Schedule 2.1(a) that (A) at the Closing is operated, owned, leased, or otherwise under the control of or attributed to Seller or the Business, and (B) is located in the Territory (collectively, the “"Real Property”");
(b) the accounts receivable and inventories owned by Seller and principally related to the Business, and other similar or related items principally related to the Business, all as reflected in the applicable FERC Accounts set forth on Exhibit 3.1;
(c) the Documents;
(d) the machinery, equipment, vehicles, furniture, pipeline system, natural gas, distribution assets, electrical distribution assets, and other tangible personal property owned by Seller and used principally in the Business, including the vehicles and equipment listed on Schedule 2.1(d) to be attached to the Agreement prior to July 1, 2007), and all warranties against manufacturers or vendors relating thereto, to the extent that such warranties are freely transferable;
(e) the Business Agreements and the Franchises, in each case, to the extent the same are assignable;
(f) the Allocated Rights and Obligations to the extent transferred to the Companies Buyer pursuant to Section 8.5(d7.4(e);
(g) the PermitsPermits listed on Schedule 5.15, in each case to the extent the same are assignable (the “"Transferable Permits”");
(h) the severance compensation agreements, if any, between Seller and the Business Employees, as applicable (the “Severance Compensation Agreements”);
(i) the Environmental Permits, including those Permits listed on Schedule 5.10(a)-2, in each case to the extent the same are assignable (the “"Transferable Environmental Permits”");
(j) in addition to the claims, rights and proceeds described in Section 2.1(r), to the extent (i) Seller has received any insurance proceeds from settlements with insurance providers prior to the date hereof relating to costs to clean-up any Real Property as required under any Environmental Laws, including any manufactured gas plant sites acquired by Buyer pursuant to this Agreement, and (ii) such clean-up costs have not been incurred prior to the Closing Date, a pro-rata share of such proceeds to be allocated to the Real Property based upon the estimated clean-up costs of all similar sites of Seller covered by such proceeds;
(k) any refund or credit related to Taxes paid by or on behalf of Seller for which Buyer is liable pursuant to Section 8.7, whether such refund is received as a payment or as a credit against future Taxes payable;
(l) Claims and defenses of Seller to the extent such Claims or defenses arise principally with respect to the Purchased Assets or the Assumed Obligations, provided that any such Claims and defenses will be assigned to the Companies Buyer without warranty or recourse;
(mj) any assets acquired by Seller pursuant to Section 7.4(d) for inclusion in the Purchased Assets;
(k) assets transferred pursuant to Section 8.87.9;
(l) the Supervisory Control and Data Acquisition ("SCADA") equipment and software set forth on Schedule 2.1(l);
(m) the assets set forth on Schedule 2.1(m); and
(n) any other assets owned by Seller and set forth on Schedule 2.1(n);
(o) assets included in the FERC Accounts upon which the Selected Balance Sheet Information was prepared;
(p) any credits, benefits, emissions reductions, offsets and allowances with respect to any Environmental Laws purchased by or granted or issued to Seller for use by or with respect to the Business or the Purchased Assets;
(q) any other assets of Seller used principally in the Business; and
(r) any claims or rights under or proceeds of Seller’s insurance policies to the extent related to the Business, the Purchased Assets or the Assumed Obligations, including claims, rights or proceeds contemplated by Section 8.9(b).. <PAGE>
Appears in 1 contract
The Sale. Upon the terms and subject to the satisfaction of the conditions contained in this Agreement, at the Closing, Seller and Limited Partner will sell, assign, convey, transfer, and deliver to Buyer and to Buyer’s designated limited partner, and Buyer and Buyer’s designee will purchase and acquire the Company Interests from Seller as the general partner of Electric Opco and Gas Opco, and from Limited Partner as the limited partner of Electric Opco and Gas Opco (the “Interests Transfer”). Immediately prior to the Interests Transfer and the Closing, Seller will transfer and cause the Companies to acquire from Seller, subject to free and clear of all Encumbrances (except for Non-Permitted Encumbrances), all of Seller’s right, title, and interest in, to, and under the real and personal property, tangible or intangible, principally related to the Business, including as described below, as the same exists at the Closing Effective Time (and, as applicable and as permitted or contemplated hereby, or as Buyer and Parent agree, with such additions and eliminations of assets deletions as shall may occur from the date hereof through the ClosingEffective Time), except to the extent that such assets are Excluded Assets (collectively, the “Purchased Assets”):
(a) Seller’s the real property and real property interests located in Colorado, including (i) as described on Schedule 2.1(a), (ii) including buildings, structures, other improvements, and fixtures located thereon, (iii) all rights, privileges, easements and appurtenances thereto, the leasehold and subleasehold interests under the leases described on Schedule 5.95.9 (to the extent such leasehold and subleasehold interests are assignable), (iv) and the Easements and Shared Easement Rights to be conveyed at the Closing pursuant to Section 8.5(a), 7.4(b) (to the extent such Easements and (vShared Easement Rights are assignable) any installation, facility, plant (including any manufactured gas plant), or site (including any manufactured gas plant site) described on Schedule 2.1(a) that (A) at the Closing is operated, owned, leased, or otherwise under the control of or attributed to Seller or the Business, and (B) is located in the Territory (collectively, the “Real Property”);
(b) the accounts receivable receivable, billed and inventories owned by Seller and principally related to the Businessunbilled, inventories, and other similar or related items principally related to assets, in each case, as reflected in the Businessapplicable FERC Accounts;
(c) the Documents;
(d) all assets reflected in Net Plant as set forth on Exhibit 3.1. and, to the extent not reflected in Net Plant, the machinery, equipment, vehicles, furniture, pipeline system, natural gas, distribution assets, electrical distribution assets, system and other tangible personal property owned by Seller and used principally in the Business, including the vehicles and equipment listed on Schedule 2.1(d) to be attached to the Agreement prior to July 1, 2007), and all warranties against manufacturers or vendors relating thereto;
(e) the Business Agreements and the Franchises;
(f) the Allocated Rights and Obligations to the extent transferred to the Companies pursuant to Section 8.5(d);
(g) the Permits, in each case to the extent the same are assignable (the “Transferable Permits”);
(h) the severance compensation agreements, if any, between Seller and the Business Employees, as applicable (the “Severance Compensation Agreements”);
(i) the Environmental Permits, including those listed on Schedule 5.10(a)-2, in each case to the extent the same are assignable (the “Transferable Environmental Permits”);
(j) in addition to the claims, rights and proceeds described in Section 2.1(r), to the extent (i) Seller has received any insurance proceeds from settlements with insurance providers prior to the date hereof relating to costs to clean-up any Real Property as required under any Environmental Laws, including any manufactured gas plant sites acquired by Buyer pursuant to this Agreement, and (ii) that such clean-up costs have not been incurred prior to the Closing Date, a pro-rata share of such proceeds to be allocated to the Real Property based upon the estimated clean-up costs of all similar sites of Seller covered by such proceedswarranties are freely transferable;
(k) any refund or credit related to Taxes paid by or on behalf of Seller for which Buyer is liable pursuant to Section 8.7, whether such refund is received as a payment or as a credit against future Taxes payable;
(l) Claims and defenses of Seller to the extent such Claims or defenses arise principally with respect to the Purchased Assets or the Assumed Obligations, provided that any such Claims and defenses will be assigned to the Companies without warranty or recourse;
(m) assets transferred pursuant to Section 8.8;
(n) any other assets owned by Seller and set forth on Schedule 2.1(n);
(o) assets included in the FERC Accounts upon which the Selected Balance Sheet Information was prepared;
(p) any credits, benefits, emissions reductions, offsets and allowances with respect to any Environmental Laws purchased by or granted or issued to Seller for use by or with respect to the Business or the Purchased Assets;
(q) any other assets of Seller used principally in the Business; and
(r) any claims or rights under or proceeds of Seller’s insurance policies to the extent related to the Business, the Purchased Assets or the Assumed Obligations, including claims, rights or proceeds contemplated by Section 8.9(b).
Appears in 1 contract
The Sale. Upon the terms and subject to the satisfaction of the conditions contained set forth in this Agreement, at on the ClosingClosing Date (as defined in Section 3.1 hereof), Seller Sellers jointly and Limited Partner will severally agree to sell, assign, convey, transfer, transfer and deliver to Buyer and to Buyer’s designated limited partner, and Buyer and Buyer’s designee will agrees to purchase and acquire the Company Interests accept from Seller Sellers, free and clear of all liens, encumbrances, mortgages or security interests, except as the general partner of Electric Opco and Gas Opco, and from Limited Partner as the limited partner of Electric Opco and Gas Opco (the “Interests Transfer”expressly permitted in Section 3.2(a). Immediately prior to the Interests Transfer and the Closing, Seller will transfer and cause the Companies to acquire from Seller, subject to all Encumbrances except for Non-Permitted Encumbrances, all of Seller’s rightthe assets and properties of Sellers, titlewhether real, and interest in, to, and under the real and personal propertypersonal, tangible or intangible, principally related to which are owned by Sellers and used in connection with the BusinessNewspapers at each of their respective locations (specifically excepting the Excluded Assets described in Section 1.2 hereof), including all additions thereto through and including the Closing Date, but less all dispositions thereof as described belowpermitted pursuant to Section 6.1 hereof through and including the Closing Date, such assets and properties being referred to herein as the same exists at "Assets", and including without limitation the Closing (and, as applicable and as permitted or contemplated hereby, or as Buyer and Parent agree, with such additions and eliminations of assets as shall occur from the date hereof through the Closing), except to the extent that such assets are Excluded Assets (collectively, the “Purchased Assets”):following:
(a) Seller’s Sellers' parcels of real property owned in fee and real property interests located used in Coloradothe ownership or operation of the Newspapers, including (i) as described on Schedule 2.1(a), (ii) and all buildings, structures, structures and other improvements, and fixtures improvements located thereon, (iii) and all rightseasements, privileges, easements rights of way and appurtenances thereto, the leasehold and subleasehold interests under the leases described on Schedule 5.9, (iv) the Easements to be conveyed at the Closing pursuant to Section 8.5(a), and (v) any installation, facility, plant (including any manufactured gas plant), or site (including any manufactured gas plant site) described on Schedule 2.1(a) that (A) at the Closing is operated, owned, leased, or otherwise under the control of or attributed to Seller or the Business, and (B) is located similar authorizations used in the Territory conduct of the business and operations of the Newspapers, including the parcels of real property owned in fee and easements, rights of way and similar authorizations which are described in Section 4.12 of a document delivered by Sellers to Buyer contemporaneously with the execution of this Agreement (collectively, such document is referred to herein as the “Real Property”"Disclosure Schedule");
(b) All of the accounts receivable tangible personal property which is owned and inventories owned by Seller used in the conduct of the business and principally related to operations of the BusinessNewspapers, including furniture, fixtures, machinery, equipment and other similar or related items principally related to vehicles, including without limitation, the Businesstangible personal property listed in Section 4.13 of the Disclosure Schedule;
(c) All contracts, agreements, options, leases (whether of realty or personalty, but other than any lease by and between a Seller and another Seller or any of its affiliates, which shall be terminated as of Closing in accordance with Section 3.2(g) hereof) and commitments of Sellers which are related to the Documentsconduct of the business and operations of the Newspapers, whether oral or written, express or implied, including leases of property used in the operations of the Newspapers, rights and interests in and under purchase contracts for new equipment, including purchase price deposits, advertising sales and newspaper distribution contracts, supplier contracts, advertising service contracts and all service and feature or other information provider contracts, and which either (i) are listed in Section 4.7 of the Disclosure Schedule; (ii) are advertising contracts entered into in the ordinary course of business at published rates and on a form substantially the same as one of the forms included in Section 4.7 of the Disclosure Schedule; (iii) are news carrier contracts entered into in the ordinary course of business and on a form substantially the same as the form included in Section 4.7 of the Disclosure Schedule; (iv) are other contracts which were entered into in the ordinary course of business consistent with past practice and do not involve monetary obligations individually or in the aggregate of more than Fifty Thousand Dollars ($50,000) per annum; or (v) are entered into after the date hereof in the ordinary course of business in accordance with Section 6.1 hereof or with the prior written consent of Buyer (all of such contracts, agreements, options, leases or commitments are sometimes referred to herein collectively as the "Contracts");
(d) All orders for the machinery, equipment, vehicles, furniture, pipeline system, natural gas, distribution assets, electrical distribution assets, sale of advertising and other tangible personal property owned by Seller and used principally in the Business, including the vehicles and equipment listed on Schedule 2.1(d) to be attached subscriptions which relate to the Agreement prior to July 1, 2007, and all warranties against manufacturers or vendors relating theretoNewspapers;
(e) All permits, licenses and authorizations issued by local, state and federal authorities, and applications therefor, which are held by any Seller or any Newspaper, that are used in the Business Agreements conduct of the business of any Newspaper, including those set forth in Section 4.11 of the Disclosure Schedule (all of such licenses, permits and authorizations are sometimes collectively referred to herein as the Franchises"Licenses");
(f) All mastheads, trade names, trademarks, service marks, service names and other similar intangible rights and interests, and the Allocated Rights goodwill associated therewith, which are used or useful in connection with the business and Obligations to operations of the extent transferred to the Companies pursuant to Section 8.5(d)Newspapers;
(g) the PermitsAll artwork, in each case copyrights and other ownership rights related to the extent contents of the same are assignable Newspapers, all copies of previously published editions of the Newspapers, the Newspapers' morgue or library and copies of all material files, financial information and all accounting records relating to the assets or operations of the Newspapers and located at any offices or facilities of the Newspapers, including without limitation any current financial data with respect to the Newspapers, together with computer print-outs thereof containing all current and historical financial information (including state income tax returns relating to the “Transferable Permits”)Newspapers and sales, use and property tax returns for the Newspapers) maintained by Sellers with respect to the Newspapers (separate from any such data maintained for any other publications of Sellers) and all related intellectual property;
(h) All prepaid taxes and expenses with respect to the severance compensation agreements, if any, between Seller business and operations of the Business Employees, as applicable (the “Severance Compensation Agreements”)Newspapers;
(i) All inventories of newsprint, ink, film, photographic paper and plates, spare parts, supplies, fuel and other consumable items used or useful in connection with the Environmental Permits, including those listed on Schedule 5.10(a)-2, in each case to business and operations of the extent the same are assignable (the “Transferable Environmental Permits”)Newspapers;
(j) in addition All surety bonds, surety deposits and security deposits posted by or on behalf of Sellers as security for its or the Newspapers' performance of any Contract or obligation to the claims, rights and proceeds described in Section 2.1(r), to the extent (i) Seller has received any insurance proceeds from settlements with insurance providers prior to the date hereof relating to costs to clean-up any Real Property as required under any Environmental Laws, including any manufactured gas plant sites acquired be assumed by Buyer pursuant to this Agreement;
(k) All cash bonds and trust accounts related to carriers for the Newspapers;
(l) All subscriber, advertiser and (ii) such clean-up costs have not been incurred trade accounts receivable due to Sellers as a result of the business and operations of the Newspapers prior to the Closing Date, a pro-rata share of such proceeds to be allocated to the Real Property based upon the estimated clean-up costs of all similar sites of Seller covered by such proceeds;
(k) any refund or credit related to Taxes paid by or on behalf of Seller for which Buyer is liable pursuant to Section 8.7, whether such refund is received as a payment or as a credit against future Taxes payable;
(l) Claims and defenses of Seller to the extent such Claims or defenses arise principally with respect to the Purchased Assets or the Assumed Obligations, provided that any such Claims and defenses will be assigned to the Companies without warranty or recourse;
(m) assets transferred pursuant to Section 8.8;Sellers' records, files and data used in the business and operations of the Newspapers, including maps, plans, diagrams, engineering data, blueprints and schematics, if any; and
(n) any All other assets owned by Seller Sellers and set forth on Schedule 2.1(n);
(o) assets included used in the FERC Accounts upon which business and operations of the Selected Balance Sheet Information was prepared;
(p) any credits, benefits, emissions reductions, offsets and allowances with respect Newspapers not specifically referred to any Environmental Laws purchased by or granted or issued to Seller for use by or with respect to the Business or the Purchased Assets;
(q) any other assets of Seller used principally in the Business; and
(r) any claims or rights under or proceeds of Seller’s insurance policies to the extent related to the Business, the Purchased Assets or the Assumed Obligations, including claims, rights or proceeds contemplated by Section 8.9(b)above.
Appears in 1 contract
The Sale. Upon the terms and subject to the satisfaction of the conditions contained in this Agreement, at the Closing, Seller and Limited Partner will sell, assign, convey, transfer, transfer and deliver to Buyer and to Buyer’s designated limited partner, and Buyer and Buyer’s designee will purchase and acquire the Company Interests from Seller as the general partner of Electric Opco and Gas Opco, and from Limited Partner as the limited partner of Electric Opco and Gas Opco (the “Interests Transfer”). Immediately prior to the Interests Transfer and the Closing, Seller will transfer and cause the Companies to acquire from Seller, subject to all Encumbrances except for Non-Permitted Encumbrances, all of Seller’s right, title, and interest in, to, and under the real and personal property, tangible or intangible, principally related to the Business, including as described below, as the same exists at the Closing (and, as applicable and as permitted or contemplated hereby, or as Buyer and Parent agree, with such additions and eliminations of assets as shall occur from the date hereof through the Closing), except to the extent that such assets are Excluded Assets (collectively, the “Purchased Assets”):
(a) Seller’s real property and real property interests located in ColoradoIowa, Kansas (other than real property or real property interests principally related to Seller’s electric utility business in Kansas) and Nebraska, including (i) as described on Schedule 2.1(a), (ii) buildings, structures, other improvements, and fixtures located thereon, (iii) all rights, privileges, easements and appurtenances thereto, the leasehold and subleasehold interests under the leases described on Schedule 5.9, (iv) the Easements to be conveyed at the Closing pursuant to Section 8.5(a), and (v) any installation, facility, plant (including any manufactured gas plant), or site (including any any
1- LA/903877.26 manufactured gas plant site) described on Schedule 2.1(a) that (A) at the Closing is operated, owned, leased, or otherwise under the control of or attributed to any of Seller or the Business, and (B) is located in the Territory Territories (collectively, the “Real Property”);
(b) the accounts receivable and inventories owned by Seller and principally related to the Business, and other similar or related items principally related to the Business;
(c) the Documents;
(d) the machinery, equipment, vehicles, furniture, pipeline system, natural gas, distribution assets, electrical gas distribution assets, and other tangible personal property owned by Seller and used principally in the Business, including the vehicles and equipment listed on Schedule 2.1(d) to be attached to the Agreement prior to July 1, 2007, and all warranties against manufacturers or vendors relating thereto;
(e) the Business Agreements and the Franchises;
(f) the Allocated Rights and Obligations to the extent transferred to the Companies Buyer pursuant to Section 8.5(d);
(g) the Permits, in each case to the extent the same are assignable (the “Transferable Permits”);
(h) the severance compensation agreements, if any, between Seller and the Business Employees, as applicable (the “Severance Compensation Agreements”);
(i) the Environmental Permits, including those listed on Schedule 5.10(a)-2, in each case to the extent the same are assignable (the “Transferable Environmental Permits”);
(j) in addition to the claims, rights and proceeds described in Section 2.1(r), to the extent (i) Seller has received any insurance proceeds from settlements with insurance providers prior to the date hereof relating to costs to clean-up any Real Property as required under any Environmental Laws, including any manufactured gas plant sites acquired by Buyer pursuant to this Agreement, and (ii) such clean-up costs have not been incurred prior to the Closing Date, a pro-rata share of such proceeds to be allocated to the Real Property based upon the estimated clean-up costs of all similar sites of Seller covered by such proceeds;
(k) any refund or credit related to Taxes paid by or on behalf of Seller for which Buyer is liable pursuant to Section 8.7, whether such refund is received as a payment or as a credit against future Taxes payable;
(l) Claims and defenses of Seller to the extent such Claims or defenses arise principally with respect to the Purchased Assets or the Assumed Obligations, provided that any such Claims and defenses will be assigned to the Companies Buyer without warranty or recourse;
(m) assets transferred pursuant to Section 8.8;
(n) any other assets owned by Seller and set forth on Schedule 2.1(n);
1- LA/903877.26
(o) assets included in the FERC Accounts upon which the Selected Balance Sheet Information was prepared;
(p) any credits, benefits, emissions reductions, offsets and allowances with respect to any Environmental Laws purchased by or granted or issued to Seller for use by or with respect to the Business or the Purchased Assets;
(q) any other assets of Seller used principally in the Business; and
(r) any claims or rights under or proceeds of Seller’s insurance policies to the extent related to the Business, the Purchased Assets or the Assumed Obligations, including claims, rights or proceeds contemplated by Section 8.9(b).
Appears in 1 contract
