ESTATE
DOCUMENTS, ENGINEERING DESIGNS, BLUEPRINTS, AS-BUILT PLANS, SPECIFICATIONS,
PROCEDURES, STUDIES, REPORTS AND EQUIPMENT REPAIR, SAFETY, MAINTENANCE OR
SERVICE RECORDS, LISTS OF PRESENT AND FORMER
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SUPPLIERS, LISTS OF PRESENT AND FORMER CUSTOMERS, AND OTHER SUCH MATERIALS (IN
ANY FORM OR MEDIUM) OF THE SELLERS, INCLUDING THE TRANSFERRING EMPLOYEE RECORDS;
(VI)
ALL RIGHTS IN AND TO ANY CAUSES OF ACTION, LAWSUITS, JUDGMENTS,
CLAIMS AND DEMANDS OF ANY NATURE AVAILABLE TO OR BEING PURSUED BY OR ON BEHALF
OF THE SELLERS, WHETHER ARISING BY WAY OF COUNTERCLAIM OR OTHERWISE;
(VII)
EXCEPT FOR PREPAID EXPENSES AND DEPOSITS OF THE SELLERS
ATTRIBUTABLE TO ANY EXCLUDED ASSETS OR EXCLUDED LIABILITIES, ALL PREPAID
EXPENSES, PROGRESS PAYMENTS AND DEPOSITS OF OR BY THE SELLERS, RIGHTS TO RECEIVE
A PREPAID EXPENSE, DEPOSIT OR PROGRESS PAYMENT, AND CASH IN TRANSIT THAT
CONSTITUTES A PREPAID EXPENSE, PROGRESS PAYMENT OR DEPOSIT, RELATING TO ANY
ACQUIRED ASSET OR ASSUMED LIABILITY;
(VIII)
SUBJECT TO SECTION 7.1(A)(XVI), ALL EMISSION ALLOWANCES SET FORTH
ON SCHEDULE 2.1(B)(VIII), ALL EMISSIONS ALLOWANCES SPECIFICALLY ISSUED OR
ALLOCATED TO THE WHEATLAND FACILITY BY ENVIRONMENTAL AGENCIES OF THE UNITED
STATES OF AMERICA OR THE STATE OF INDIANA WITH A VINTAGE YEAR OF 2005 OR LATER
(TO THE EXTENT NOT ALREADY IDENTIFIED ON SCHEDULE 2.1(B)(VIII)), AND ANY
EMISSIONS ALLOWANCE PURCHASED BY THE SELLERS SPECIFICALLY FOR THE WHEATLAND
FACILITY ON OR BEFORE THE DATE HEREOF;
(IX)
ALL INTELLECTUAL PROPERTY AND ASSOCIATED LICENSES, INCLUDING
RIGHTS TO SUE FOR AND REMEDIES AGAINST PAST, PRESENT AND FUTURE INFRINGEMENTS
THEREOF, AND RIGHTS OF PRIORITY AND PROTECTION OF INTERESTS THEREIN UNDER THE
LAWS OF ANY JURISDICTION WORLDWIDE AND ALL TANGIBLE EMBODIMENTS THEREOF; AND
(X)
ALL OTHER ASSETS, RIGHTS AND INTERESTS OF THE SELLERS;
PROVIDED, HOWEVER, THAT THE ACQUIRED ASSETS SHALL NOT INCLUDE THE EXCLUDED
ASSETS.
2.2.
Excluded Assets.
Notwithstanding any provision herein to the
contrary, the Acquired Assets shall exclude the following assets (collectively,
the "Excluded Assets"):
(A)
ALL CASH, CASH EQUIVALENTS, BANK DEPOSITS, ACCOUNTS RECEIVABLE OF
THE SELLERS OR WITH RESPECT TO THE WHEATLAND FACILITY AS OF THE CLOSING AND ANY
TAX RECEIVABLES OF THE SELLERS;
(B)
ANY REFUND OR CREDIT OF TAXES PAID BY THE SELLER PARTIES IN
RESPECT OF THE SELLERS OR THE ACQUIRED ASSETS OR FOR WHICH THE SELLER PARTIES
ARE REQUIRED TO REIMBURSE THE BUYERS, WHETHER SUCH PAYMENT IS ACTUALLY RECEIVED
AS A REFUND OR AS A CREDIT AGAINST TAXES PAYABLE;
(C)
ALL INTERESTS IN AND TO THE ALLEGHENY MARKS, AND THE MAXIMO
SOFTWARE LICENSE (IT BEING UNDERSTOOD THAT THE DATABASE INFORMATION, INCLUDING
HISTORICAL INFORMATION, RELATED TO THE WHEATLAND FACILITY USED WITH THE MAXIMO
SOFTWARE SHALL BE AN ACQUIRED ASSET);
(D)
ALL PERSONNEL, MEDICAL AND BENEFITS RECORDS OF THE SELLER PARTIES
OR THEIR AFFILIATES, OTHER THAN TRANSFERRING EMPLOYEE RECORDS;
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(E)
ANY AMOUNT RECEIVED AFTER THE CLOSING DATE FOR ELECTRICITY SOLD
AND DELIVERED ON OR PRIOR TO THE CLOSING DATE;
(F)
THOSE CONTRACTS AND LEASES LISTED ON SCHEDULE 2.2(F);
(G)
ANY ASSET SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF IN ACCORDANCE
WITH SECTION 7.1(A)(V); AND
(H)
ALL PROPERTIES AND ASSETS OF AESC