TO OBTAIN ANY NECESSARY CONSENT OR WAIVER), AND (3) THE
FAILURE TO OBTAIN SUCH WAIVER OR SATISFY SUCH TRANSFER RESTRICTION WOULD CAUSE A
TERMINATION OF SUCH INSTRUMENT OR A MATERIAL IMPAIRMENT OF THE RIGHTS
THEREUNDER; AND
(IV)
ALL EQUIPMENT, MACHINERY, FIXTURES, WELL LINES, PIPELINES AND
OTHER TANGIBLE PERSONAL PROPERTY AND IMPROVEMENTS LOCATED ON THE PROPERTIES OR
USED OR HELD FOR USE PRIMARILY IN CONNECTION WITH THE OWNERSHIP OR OPERATION OF
THE PROPERTIES OR OTHER COMBINED ASSETS, BUT EXCLUDING ANY SUCH ITEMS AT AND
DOWNSTREAM OF ANY WELLSITE METERING EQUIPMENT ASSOCIATED WITH ANY WELL
(INCLUDING SUCH WELLSITE METERING EQUIPMENT AND ANY GATHERING LINES, PIPELINES,
WELL LINES AND COMPRESSORS DOWNSTREAM OF SUCH WELLSITE METERING EQUIPMENT), AND
ANY SUCH ITEMS INCLUDED IN THE EXCLUDED ASSETS (THAT PORTION OF SELLER'S RIGHT,
2
TITLE AND INTEREST IN SUCH EQUIPMENT, MACHINERY, FIXTURES AND OTHER TANGIBLE
PERSONAL PROPERTY AND IMPROVEMENTS CORRESPONDING TO THE PROPERTIES, AND SUBJECT
TO SUCH EXCLUSIONS, THE "EQUIPMENT").
Section 1.3
Excluded Assets.
Notwithstanding anything to the
contrary contained herein, the Combined Assets shall not include, and the
following are excepted, reserved and excluded from the transactions contemplated
hereby (collectively, the "Excluded Assets"):
(A)
ALL WATER DISPOSAL WELLS, AND ANY TRANSFER FACILITY, LOADOUT FACILITY OR
OTHER FACILITY ASSOCIATED WITH SUCH WATER DISPOSAL WELLS, LOCATED ON THE LEASES
OR USED IN CONNECTION WITH THE DISPOSAL OF PRODUCED WATER DERIVED FROM OR
OTHERWISE ATTRIBUTABLE TO ANY OF THE WELLS, INCLUDING THOSE WATER DISPOSAL WELLS
AND ASSOCIATED FACILITIES DESCRIBED ON EXHIBIT A-4;
(B)
(I) COMPUTERS AND PERIPHERAL EQUIPMENT RELATED TO SUCH COMPUTERS; (II)
COMMUNICATION AND TELECOMMUNICATION EQUIPMENT INCLUDING BUT NOT LIMITED TO
RADIOS, TOWERS, AND NETWORKING EQUIPMENT; (III) CUSTOM APPLICATIONS AND
DATABASES; (IV) MEASUREMENT AND DATA COLLECTION DEVICES; AND (V) SOFTWARE AND
ASSOCIATED LICENSES, INCLUDING BUT NOT LIMITED TO ANY SOFTWARE RELATING TO THE
SCADA SYSTEM, ENERTIA, ALTRA, FLOW-CAL, TALON, ARIES, PRODUCTION ACCESS,
PRE-DRILL MANAGER, GEOGRAPHIX, SYNERGY, AND CYGNET;
(C)
ALL RIGHTS AND ALL OBLIGATIONS OF SELLER WITH RESPECT TO ANY REFUND OR
PAYMENT OF TAXES OR OTHER COSTS OR EXPENSES BORNE BY SELLER OR SELLER'S
PREDECESSORS IN INTEREST AND TITLE ATTRIBUTABLE TO THE ASSETS AND THE PERIOD
PRIOR TO THE EFFECTIVE TIME;
(D)
ALL RIGHTS AND ALL OBLIGATIONS OF SELLER WITH RESPECT TO THE CLAIMS AND
CAUSES OF ACTION RELATING TO THE ASSETS THAT ACCRUED OR AROSE PRIOR TO THE
EFFECTIVE TIME (OTHER THAN CLAIMS OR CAUSES OF ACTION FOR PROCEEDS TO WHICH
PURCHASER IS ENTITLED UNDER SECTION 1.5(B));
(E)
SELLER'S AREA-WIDE BONDS, PERMITS AND LICENSES (INCLUDING ALL FEDERAL
COMMUNICATIONS COMMISSION LICENSES) OR OTHER PERMITS, LICENSES OR AUTHORIZATIONS
USED IN THE CONDUCT OF SELLER'S BUSINESS GENERALLY;
(F)
THE GATHERING ASSETS;
(G)
ALL FEE MINERAL INTERESTS IN HYDROCARBONS; AND
(H)
THOSE OTHER ASSETS AND INTERESTS IDENTIFIED ON EXHIBIT A-4.
Section 1.4
Certain Definitions.
As used herein:
(A)
"AFFILIATE" MEANS, WITH RESPECT TO ANY PERSON, A PERSON THAT DIRECTLY OR
INDIRECTLY CONTROLS, IS CONTROLLED BY OR IS UNDER COMMON CONTROL WITH SUCH
PERSON, WITH CONTROL IN SUCH CONTEXT MEANING (I) THE POWER TO DIRECT THE VOTE OF
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