Description of Assets On the terms and subject to the conditions of this Agreement, Seller will, on the Closing Date (as defined in Section 3.1), grant, convey, sell, transfer and assign to Buyer all of Seller's right, title and interest in and to the following assets, properties and contractual rights, wherever located, subject to the exclusions set forth in Section 1.2:
(a) the Land, including, but not limited to, (i) all buildings, fixtures, and personalty located thereon, (ii) easements, interests, rights, tenements, hereditaments, and appurtenances relating to the Land or any improvements thereon, or relating principally to the Business, (iii) all mineral, water, and irrigation rights, if any, (iv) Seller's interests, if any, in any roadway adjoining the Land, (v) any rights or interests that may accrue to the benefit of Seller or the Land as a result of the abandonment thereof and (vi) with respect to the leased Land (the "Leased Land"), Seller's leasehold interest in and to the Leased Land and improvements thereon that are the subject of the Real Estate Lease (as defined in Section 5.5(b)(iv)) upon the terms set forth herein;
(b) subject to Section 1.3, all permits, licenses, authorizations, registrations, franchises, consents and approvals of every kind necessary to operate the Business (the "Permits"), including, without limitation, the Permits listed on SCHEDULE 1.1(b);
(c) all equipment, including containers used or for use principally in the Business and owned or leased by Seller (the "Equipment") including, without limitation, the Equipment listed on SCHEDULE 1.1(c);
(d) all of the motor vehicles, including pick-up trucks and other service related vehicles used or for use principally in the Business and owned by Seller and all attachments, accessories and materials handling equipment now located in or on such motor vehicles, including all radios and the radio base station, if any (the "Rolling Stock"), as the same are described on SCHEDULE 1.1(d):
(e) all customer information, and transferable software and programs related to ▇▇▇▇▇▇▇▇ used or for use exclusively in the Business;
(f) all of Seller's inventory of supplies, parts, tires and accessories of every kind, nature, and description used or for use principally in the Business (the "Inventory");
(g) all right, title and interest of Seller in and to all trade secrets, intellectual property rights, patents, copyrights, inventions, symbols, trademarks, service marks, logos and trade names used exclusively in the Business and owned by Seller except (subject to Section 4.1) those symbols, trademarks, service marks, logos and trade names that include the names of or otherwise identify Seller or Seller Parent or any affiliate thereof;
(h) all contractual rights of Seller with Seller's customers (whether oral or in writing) principally relating to the Business (the "Customer Contracts"), all commitments, lists, and other instruments relating to the Customer Contracts (the "Related Approvals") and the Assumed Leases (as defined in Section 5.4(c)) (collectively, the "Assumed Contracts") (a complete and accurate list of all of the Assumed Contracts is set forth on SCHEDULE 1.1(h)), and the Material Contracts (as hereinafter defined in Section 1.3(b)) are marked with an asterisk;
(i) the names listed on SCHEDULE 1.1(i) and the right to use such names and all similar names in the State(s) listed thereon (the "Business Names");
(j) the telephone number(s) used principally in the operation of the Business;
(k) all of Seller's shop tools, nuts and bolts relating principally to the Business;
(l) all recycling equipment used principally in the Business, if any;
(m) all books and records relating exclusively to the Business, including, without limitation, customer lists and vendor lists.
(n) all litigation rights to which Seller is a plaintiff as described in SCHEDULE 5.10:
(o) the cash on hand or on deposit with Buyer as set forth in Section 1.4; and
(p) all of the goodwill of the Business;
(q) all the non-competes, confidentiality agreements or similar contracts benefitting Seller and relating to the Business listed on Schedule 1.1(q) (the "Covenants"). All of the foregoing assets, properties and contractual rights are hereinafter sometimes collectively called the "Assets."
Purchase and Sale of Acquired Assets On the Closing Date but effective as of the Effective Date, each Seller shall sell, transfer, deliver, convey and assign to Purchaser, and Purchaser shall purchase, acquire, and accept from such Seller, upon the terms and conditions stated herein, all of such Seller’s right, title and interest in and to the following:
(a) All hardware, third-party software licenses, documentation, third-party trademark licenses, fixtures, furniture, equipment and other assets of such Seller, in each case, which is necessary to satisfy such Seller’s obligations under the Assumed Contracts, as identified on Schedule 1.1 attached hereto (the “Transferred Resources”), to the fullest extent transferable by such Seller to Purchaser (or if not at all transferable, a mutually acceptable arrangement shall be structured as provided in Section 8.4);
(b) All right, title, and interest of such Seller in and to the source code, object code, schematics, design tools, and all associated documentation for all of such Seller’s past or present software products (including but not limited to Connect CCB, Connect IXC, Access IM, Connect RTR, IPC, WPM, Marketing Dashboard, Revenue Assurance Suite, Communications Resources Manager (CRM), and EBP&P), and all of such Seller’s software tools, subroutines, and other components, whether completed or under development, all prior or unreleased versions thereof, and all tangible embodiments (and all copies, extracts, or analyses thereof) in any medium whatsoever, and all right, title, and interest of such Seller in and to its copyrights, patents, trademarks, service marks, trade dress, and any applications therefor (including U.S. patent application number 12055933), and any related Intellectual Property Rights (as defined in Section 2.2) of such Seller, and all rights under any and all contracts for the acquisition or development of any of the foregoing, including without limitation assignments to such Seller, covenants to assign inventions to such Seller (including without limitation those assignments contained in subcontractor agreements), covenants to cooperate with such Seller’s obtaining protections of intellectual property, other provisions for ownership by such Seller of a work-for-hire, any and all confidentiality and non-disclosure agreements in favor of a Seller and all agreements similar to the foregoing, in each case to the fullest extent transferable by such Seller to Purchaser (or if not at all transferable, a mutually acceptable arrangement shall be structured as provided in Section 8.4) (collectively, the “Intellectual Property”);
(c) All right, title, and interest (including rights to payment for customer services which services were rendered on or following the Effective Date or for Software (as hereinafter defined) for periods on or following the Effective Date) of such Seller in and under the Assumed Contracts (as hereinafter defined) on and after the Effective Date, including any successor agreements to the Assumed Contracts which are entered into by such Seller with respect to the Business prior to the Closing Date (the “Contract Rights”);
(d) Cash in an amount, when all such payments made by Sellers are aggregated, equal to Ninety Seven Thousand Three Hundred Seventy-Four Dollars and 52/100 ($97,374.52) (“Prepaid Customer Funds” and, together with the Transferred Resources, Intellectual Property, and Contract Rights, the “Acquired Assets”), which amount represents prepaid but undelivered maintenance obligations under the Assumed Contracts with Bresnan (in an amount equal to $7,760); ▇▇▇▇▇▇▇▇▇▇ (in an amount equal to $40,000); Westel (in an amount equal to $6,533); and Page One (in an amount equal to $43,081.52);
(e) All receivables and rights to payment arising with respect to customer services provided on or after the Effective Date or Software for periods on or following the Effective Date relating to any Acquired Assets;
(f) Copies of those books and records of such Seller directly related to the Acquired Assets, including invoices, purchase orders, and vendor and customer correspondence; and
(g) All goodwill and other intangible assets associated with the foregoing; in each case wherever located, but specifically excluding those assets described in Section 1.2.
Excluded Assets and Liabilities (a) Notwithstanding Section 1.2 above, the Purchased Assets shall not include the following assets (collectively, the “Excluded Assets”):
(i) all unrestricted cash of Seller as of Closing;
(ii) all accounts receivable of Seller for completed work as of Closing;
(iii) Contracts, including Intellectual Property Agreements, that are not Assigned Contracts (the “Excluded Contracts”);
(iv) all employee benefit plans and assets and liabilities attributable thereto;
(v) the assets, properties and rights specifically excluded by Buyer as permitted by this Agreement; and
(vi) the rights which accrue or will accrue to Seller under this Agreement and the Ancillary Documents.
(b) Notwithstanding any provisions of this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of Seller or any of its Affiliates of any kind or nature whatsoever (the “Excluded Liabilities”) except liabilities relating solely to the conduct of the Business by Buyer after the Closing under the Assigned Contracts (the “Assumed Liabilities”). Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy, including (without limitation) all Pre-Closing Tax Period Liabilities.
(c) After the Closing, Seller shall continue to discharge in a timely manner all of Seller’s Liabilities and obligations including, but not limited to, Liabilities and obligations disclosed in or pursuant to this Agreement.
Acquired Assets (a) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not result in a breach of the terms and conditions of, or result in a loss of rights under, or result in the creation of any lien, charge or encumbrance upon, any of the Acquired Assets for any reason, including but not limited to pursuant to (i) Sellers’ charter documents, (ii) any franchise, mortgage, deed of trust, lease, license, permit, agreement, contract, instrument or undertaking to which Sellers are a party or by which they or any of their properties are bound, or (iii) any statute, rule, regulation, order, judgment, award or decree.
(b) Sellers have good and marketable title to all of the Acquired Assets, free and clear of all mortgages, liens, leases, pledges, charges, encumbrances, equities or claims.
(c) The Acquired Assets are not subject to any material liability, absolute or contingent.
(d) The list of Acquired Assets set forth in Appendix B of this Agreement is an accurate description of all of the Mineral Leases of Sellers that are being assigned by the Sellers to the Buyer pursuant to this Agreement.
(e) The list of Acquired Assets set forth in Appendix B to this Agreement contains a list of all contracts, agreements, licenses, leases, arrangements, commitments and other undertakings relating to the Acquired Assets to which Sellers are a party or by which they or the Acquired Assets are bound. All of such contracts, agreements, leases, licenses and commitments are valid, binding and in full force and effect, and are assignable to Buyer without the consent of any other party or such consent will be obtained in writing prior to the Closing.
(f) No consent is necessary to effect the transfer to Buyer of any of the Acquired Assets, and upon the consummation of the transactions contemplated hereby, Buyer will be entitled to use the Acquired Assets to the full extent that Sellers used the same immediately prior to the transfer of the Acquired Assets.
(g) On the Closing, Buyer will have no less than a 78% net revenue interest in the Mineral Leases, or greater as indicated in Appendix B to this Agreement.
(h) There is no condition, order, or situation or any basis for such that would cause the prohibition of customary oil and gas drilling on the Mineral Leases after the Closing in accordance with applicable laws, rules and regulations.
Assumed Liabilities On the Closing Date, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities":
(a) all liabilities and obligations of Seller or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller;
(b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3;
(c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12;
(e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4;
(f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller;
(g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval;
(h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and
(i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Business.