Exhibit B.4
FORM OF EXHIBITS B, C, AND D
ASSET TRANSFER, ASSIGNMENT AND ASSUMPTION AGREEMENT
BY AND [BETWEEN/AMONG]
PACIFIC GAS AND ELECTRIC COMPANY
AND
LLC
[AND ANY SUBSIDIARIES OF LLC TO WHICH ASSETS ARE TRANSFERRED]
DATED AS OF _____________, ____
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND INTERPRETATION ......................................................... 2
Section 1.01. Defined Terms .................................................................. 2
Section 1.02. References ..................................................................... 2
Section 1.03. Titles and Headings ............................................................ 3
Section 1.04. No Strict Construction ......................................................... 3
Section 1.05. [References to LLC] ............................................................ 3
ARTICLE II TRANSFER OF ASSETS AND LIABILITIES ..................................................... 3
Section 2.01. Transfer of Assets ............................................................. 3
Section 2.02. PG&E Retained [Type of Assets] and Reservation of
Rights[; Gen FERC Boundary Land] ............................................... 7
Section 2.03. Concurrent Grants to LLC ....................................................... 8
Section 2.04. Assumption of Liabilities ...................................................... 8
Section 2.05. Excluded Liabilities ........................................................... 10
Section 2.06. Delayed Transfer of Assets and Liabilities ..................................... 10
Section 2.07. Priority of Agreements and Schedules ........................................... 11
ARTICLE III METHODS OF TRANSFER .................................................................... 11
Section 3.01. Deliveries ..................................................................... 11
Section 3.02. Further Assurances ............................................................. 12
Section 3.03. Attorney-in-Fact ............................................................... 12
ARTICLE IV DISCLAIMERS AND ACKNOWLEDGMENTS ........................................................ 13
Section 4.01. No Representations and Warranties .............................................. 13
ARTICLE V GENERAL PROVISIONS ..................................................................... 14
Section 5.01. Counterparts ................................................................... 14
Section 5.02. Complete Agreement ............................................................. 14
Section 5.03. Waivers ........................................................................ 14
Section 5.04. Amendments and Waivers ......................................................... 14
Section 5.05. Authority ...................................................................... 15
Section 5.06. Assignment ..................................................................... 15
Section 5.07. Successors and Assigns ......................................................... 15
Section 5.08. Third Party Beneficiaries ...................................................... 15
Section 5.09. Governing Law .................................................................. 15
-i-
TABLE OF CONTENTS
(continued)
Page
Section 5.10. Severability ....................................... 16
Section 5.11. Reproduction of Documents .......................... 16
Section 5.12. Dispute Resolution ................................. 16
Section 5.13. Notices ............................................ 17
Section 5.14. Responsibility for Expenses. ....................... 17
-ii-
[Note: This form document represents the general form of the Asset Transfer
Agreements to be entered into between PG&E and each of ETrans, GTrans and Gen.
Bracketed items represent language that may appear in one or more, but not all
of the Asset Transfer Agreements. In particular, it should be noted that
bracketed language referencing an LLC Subsidiary will apply only in instances
where Assets and/or Liabilities will be transferred directly to one or more
Subsidiaries of ETrans, GTrans or Gen.]
ASSET TRANSFER, ASSIGNMENT AND ASSUMPTION AGREEMENT
---------------------------------------------------
THIS ASSET TRANSFER, ASSIGNMENT AND ASSUMPTION AGREEMENT (this "LLC
---
Asset Transfer Agreement") is entered into as of _____________, ____ by and
------------------------
[between/among] PACIFIC GAS AND ELECTRIC COMPANY, a California corporation
("PG&E"), [and]___________LLC, a California limited liability company ("LLC")
---- ---
[and the limited liability companies listed on Schedule 1.0, each of which is
wholly owned by LLC, each a "LLC Subsidiary" and collectively, the
--------------
"LLC Subsidiaries"].
----------------
PG&E and LLC [and each of the LLC Subsidiaries] are individually referred to
herein as a "Party" and, collectively, as the "Parties."
----- -------
RECITALS
A. PG&E, a subsidiary of PG&E Corporation ("Parent"), is a gas
------
and electric distribution utility.
B. On April 6, 2001, PG&E commenced a case under Chapter 11 of
the Bankruptcy Code.
C. On ______________, _____, the Bankruptcy Court approved the
Plan.
D. The Plan provides, among other things, for the separation of
the existing businesses of PG&E so that the business of [description of
Business] will be owned and conducted, directly or indirectly, by LLC.
E. PG&E, Parent, Holdings, Newco, ETrans, GTrans and Gen have
entered into the Master Separation Agreement, setting forth the principal
transactions necessary to effectuate the separation and distributions
contemplated by the Plan, as well as the agreements that will govern certain
matters after the separation and distributions.
[F. The Parties desire to allocate the LLC Assets (as defined in
Section 2.01) and the LLC Liabilities (as defined in Section 2.04) among LLC and
each of the LLC Subsidiaries as indicated in the schedules to this LLC Asset
Transfer Agreement (collectively, the "Schedules" and each a "Schedule").]
--------- --------
[F./G. On the terms set forth in this LLC Asset Transfer Agreement,
(i) PG&E will transfer and assign the LLC Assets [(as defined in Section 2.01)]
to LLC [or the applicable LLC Subsidiary] and (ii) LLC [and the applicable LLC
Subsidiary] will assume the LLC Liabilities (as defined in Section 2.04).]
In consideration of the respective covenants and agreements contained in
this LLC Asset Transfer Agreement and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Parties agree
as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.01. Defined Terms. Capitalized terms used and not otherwise
defined in this LLC Asset Transfer Agreement shall have the meanings set forth
in the Glossary of Terms attached as Appendix A (the "Glossary of Terms").
---------- -----------------
Section 1.02. References. Unless a contrary intention appears in this LLC
Asset Transfer Agreement:
(a) reference to the singular includes the plural and vice versa;
(b) reference to any gender includes all other genders;
(c) reference to any agreement (including this LLC Asset Transfer
Agreement), document or instrument shall mean that agreement, document or
instrument as amended or modified and in effect from time to time in accordance
with the terms thereof;
(d) reference to any Article, Section, Appendix, Schedule or Exhibit shall
mean Articles and Sections of, and Appendices, Schedules and Exhibits to, this
LLC Asset Transfer Agreement;
(e) "hereof," "hereby" and "herein" and words of similar meaning refer to
this LLC Asset Transfer Agreement as a whole and not to any particular Article,
Section or provision of this LLC Asset Transfer Agreement
(f) "include," "includes" and "including" shall mean including without
limiting the generality of any description preceding that term;
(g) all monetary amounts shall refer to U.S. dollars;
(h) all accounting terms not otherwise expressly defined herein shall have
the meanings given to them in accordance with GAAP;
(i) any provision in this LLC Asset Transfer Agreement referring to an
action to be taken by a Person, or an action that such Person is prohibited from
taking, shall apply whether such action is taken directly or indirectly by such
Person;
(j) any reference to a Person shall include such Person's successors and
permitted assigns; and
(k) any reference to "days" shall refer to calendar days, not Business
Days.
2
Section 1.03. Titles and Headings. The table of contents hereto and titles
and headings of Articles and Sections of this LLC Asset Transfer Agreement and
of Appendices, Schedules and Exhibits are inserted for the convenience of
reference only and are not intended to be part of or to affect the meaning or
interpretation of this LLC Asset Transfer Agreement.
Section 1.04. No Strict Construction. The Parties have participated jointly
in the negotiation and drafting of this LLC Asset Transfer Agreement. In the
event an ambiguity or question of intent or interpretation arises with respect
to this LLC Asset Transfer Agreement or any of the documents delivered pursuant
hereto, this LLC Asset Transfer Agreement and such documents shall be construed
as if drafted jointly by the Parties, and no presumption or burden of proof
shall arise favoring or disfavoring a Party by virtue of the authorship of any
of the provisions of this LLC Asset Transfer Agreement or such documents.
Section 1.05. [References to LLC]. [PG&E acknowledges and agrees that:
(a) certain of the LLC Assets shall be transferred or assigned to the
LLC Subsidiaries set forth in the Schedules to this Asset Transfer Agreement,
other than LLC, provided, that any such transfer or assignment of such LLC
--------
Assets to an LLC Subsidiary is consistent with the Plan; and
(b) certain of the LLC Liabilities shall be assumed, in addition to
their assumption by LLC, by one or more of the LLC Subsidiaries, in each case as
set forth in the Schedules; provided, that no such assumption shall relieve LLC
--------
of its obligations in respect of the LLC Liabilities.
The Parties therefore acknowledge and agree that references to LLC in this LLC
Asset Transfer Agreement shall mean, or include, as the context requires, the
applicable LLC Subsidiary to the extent so indicated in the Schedules. Any LLC
Asset not identified on a Schedule as being conveyed, assigned, transferred and
delivered to an LLC Subsidiary shall be deemed to be conveyed, assigned,
transferred and delivered to LLC and any LLC Liability not identified on a
Schedule as also being assumed by an LLC Subsidiary shall be deemed to be solely
assumed by LLC.]
ARTICLE II
TRANSFER OF ASSETS AND LIABILITIES
Section 2.01. Transfer of Assets. Subject to the terms of this LLC Asset
Transfer Agreement (including PG&E's reservation of rights in the LLC Assets
pursuant to Section 2.02), the Master Separation Agreement and the other
Ancillary Agreements, PG&E hereby conveys, assigns, transfers and delivers to
LLC [or the applicable LLC Subsidiary], and LLC [or the applicable LLC
Subsidiary] accepts and acquires from PG&E, all of PG&E's right, title and
interest in and to all Assets (other than the PG&E Retained [Type of Assets])
owned by PG&E, or in which PG&E has an interest, that are used or held for use
primarily in connection with, or primarily relate to or primarily arise out of
the conduct of, the business, currently conducted by PG&E, of [description of
business to be transferred to LLC] (the "LLC Business"), but excluding [specific
------------
exclusions from business to be transferred to LLC], as such Assets are set forth
below (collectively, the "LLC Assets"):
----------
3
(a) Operational Facilities. All of the following operational
----------------------
facilities used or held for use in connection with the LLC Business
(collectively, the "LLC Operational Facilities"):
--------------------------
[list of Schedules containing business specific operational facilities will
be inserted here]
(b) [The language in this subsection will appear only in the ETrans
Asset Transfer Agreement] [Telecommunications Facilities. All of the following
-----------------------------
Assets used or held for use primarily in connection with or primarily relating
to or primarily arising out of the operation of, PG&E's proprietary
telecommunications network system used for voice and data communications
(collectively, the "ETrans Telecommunications Facilities"):
------------------------------------
(i) telecommunications circuits, including those set forth in
Schedule 2.01(b)(i) (collectively, the "ETrans Telecommunications Circuits");
------------------- ----------------------------------
(ii) telecommunications towers, antennas and facilities,
including those set forth in Schedule 2.01 (b)(ii) (collectively, the "ETrans
--------------------- ------
Telecommunications Towers"); and
------------------------
(iii) analog and digital microwave equipment, including those set
forth in Schedule 2.01(b)(iii) (collectively, the "ETrans Telecommunications
-------------------- -------------------------
Microwave Equipment").]
-------------------
(c) Real Property Interests. All:
-----------------------
(i) fee interests in real property, including those set forth in
Schedule 2.01(c)(i) (collectively, the "LLC Land");
------------------- --------
(ii) Real Property Leases, including those set forth in Schedule
--------
2.01(c)(ii) (collectively, the "LLC Real Property Leases");
---------- ------------------------
(iii) easements and rights of way, including those set forth in
Schedule 2.01(c)(iii) (collectively, the "LLC Easements");
--------------------- -------------
(iv) mineral, oil and gas and other subsurface rights,
development rights, air rights and water rights (including riparian rights),
including those set forth in Schedule 2.01(c)(iv); and
-------------------
(v) other rights or agreements relating to real property used or
held for use primarily in connection with the LLC Business, including those set
forth in Schedule 2.01(c)(v) (subsections (i) through (v), together with any
-------------------
improvements and fixtures located thereon used or held for use primarily in
connection with the LLC Business, and any of the LLC Operational Facilities that
constitute real property, improvements or fixtures, collectively referred to
herein as the "LLC Real Property Interests").
---------------------------
(d) Equity Securities. All capital stock and other equity securities
-----------------
and membership and partnership interests held by PG&E or an Affiliate of PG&E
and issued by the entities set forth in Schedule 2.01(d) (collectively, the "LLC
---------------- ---
Securities").
----------
4
(e) Tangible Personal Property. All tangible personal property
-------------------------
primarily used or held for use in connection with the LLC Business, including
all of the following tangible personal property:
(i) Personal Property Leases, including those set forth in
Schedule 2.01(e)(i) (the "LLC Personal Property Leases");
-------------------- ----------------------------
(ii) office furniture, equipment, other furnishings and supplies,
including those set forth in Schedule 2.01(e)(ii);
--------------------
(iii) information technology assets, including the computers,
desktop assets, printers and related equipment, network services, data network,
data network software, mobile radio assets, PBXs, applications and application
servers set forth in Schedule 2.01(e)(iii);
---------------------
(iv) telecommunications assets, including those set forth in
Schedule 2.01(e)(iv);
-------------------
(v) subject to and except as provided in the Master Separation
Agreement, the Employee Matters Agreement, the Tax Matters Agreement or the
Records Access Agreement, all books, records, documents, reports, operating
manuals, new product or service development materials and records, operating and
other data, books of account, general, financial, accounting and personnel
records, files, invoices, customer and supplier lists (past, present or future),
correspondence, memoranda, forms, lists, plats, surveys, plans, drawings, blue
prints, specifications, sepias, bluelines, engineering documents and any other
documents evidencing LLC Assets or LLC Liabilities, advertising and promotional
materials, studies, sales and purchase correspondence and records, records
relating to LLC Employees, photographs, and other books or records that are used
or held for use primarily in connection with the LLC Business, including those
set forth in Schedule 2.01(e)(v);
-------------------
(vi) vehicles, rolling stock and airplanes, including those set
forth in Schedule 2.01(e)(vi);
--------------------
(vii) raw materials and inventories (including inventories of work
in process, stores, supplies and finished goods and inventories in storage),
including those set forth in Schedule 2.01(e)(vii);
---------------------
(viii) fuel stock, fuel supplies, tools, parts and materials
(including construction materials and other supplies), including those set forth
in Schedule 2.01(e)(viii); and
-----------------------
(ix) other tangible personal property, including the property
that is set forth in Schedule 2.01(e)(ix).
-------------------
(f) Intellectual Property. All of the following Intellectual
---------------------
Property (collectively, the "LLC Intellectual Property"):
---------------------------
(i) trademark and service ▇▇▇▇ registrations and applications
for registrations thereof, including those set forth in Schedule 2.01(f)(i);
-------------------
5
(ii) the common law trademarks, service marks and trade names
used or held for use primarily in connection with the LLC Business, including
those set forth in Schedule 2.01(f)(ii);
--------------------
(iii) copyrights, registrations and applications for copyrights
pertaining to any item set forth in Section 2.01(e)(v);
(iv) issued patents and applications for patents, including
those set forth in Schedule 2.01(f)(iv);
--------------------
(v) domain name registrations and any pending applications
therefor, including those set forth in Schedule 2.01(f)(v);
-------------------
(vi) toll free telephone numbers, including those set forth in
Schedule 2.01(f)(vi);
--------------------
(vii) all trade secrets, know-how, confidential information,
technical information, proprietary information, process technology, plans,
drawings, analytical and process methods, designs, inventions (whether
patentable or unpatentable and whether or not reduced to practice), creative
materials, new product or service development materials and records, research
and development information and procedures that are used or held for use
primarily in connection with the LLC Business, including those set forth in
Schedule 2.01(f)(vii);
---------------------
(viii) license agreements, including those set forth in Schedule
--------
2.01(f)(viii) (the "LLC Assigned Licenses"); and
------------- ---------------------
(ix) proprietary software, including those set forth in
Schedule 2.01(f)(ix).
--------------------
(g) Governmental Entitlements. Governmental Entitlements, including
-------------------------
those set forth in Schedule 2.01(g) (collectively, the "LLC Governmental
---------------- ----------------
Entitlements").
------------
(h) Contracts. All of the contracts, guaranties, agreements,
---------
commitments, purchase orders and sales orders primarily relating to the LLC
Business, including [reference to specific classes of contracts] and the
contracts and agreements set forth in Schedule 2.01(h) (collectively, the "LLC
---------------- ---
Assigned Contracts").
------------------
(i) Notes Receivable. The notes receivable set forth in Schedule
---------------- --------
2.01(i) (collectively, the "LLC Notes Receivable").
------- --------------------
(j) Accounts Receivable. The accounts receivable that arose primarily
-------------------
from the conduct of the LLC Business set forth in Schedule 2.01(j)
----------------
(collectively, the "LLC Accounts Receivable").
-----------------------
(k) Payment Rights. The rights of PG&E to receive payments for
--------------
services primarily related to the LLC Business set forth in Schedule 2.01(k).
----------------
6
(l) Deposits and Prepaid Expenses. All security or similar deposits
-----------------------------
and prepaid expenses, including any security deposits or prepaid rent under the
LLC Real Property Leases and the LLC Personal Property Leases (collectively, the
"LLC Assigned Leases") made by PG&E primarily in connection with the LLC
-------------------
Business, including the deposits and prepaid expenses set forth in Schedule
--------
2.01(l).
-------
(m) Goodwill. The LLC Business as a going concern and all goodwill
--------
primarily relating to the LLC Business or the LLC Assets.
(n) Claims. All LLC Claims (as described in Section 9.01(_) of the
------
Master Separation Agreement), including the LLC Claims set forth in Schedule
--------
2.01(n).
-------
(o) Third Party Claims. All LLC Third Party Claims that are LLC
------------------
Assets (as described in Section 8.09(_) of the Master Separation Agreement).
(p) Contingent Gains. The LLC Exclusive Contingent Gains set forth in
----------------
Schedule 2.01(p).
----------------
Section 2.02. PG&E Retained [Type of Assets] and Reservation of Rights[;
Gen FERC Boundary Land].
(a) PG&E Retained [Type of Assets]. Notwithstanding anything to the
-----------------------------
contrary contained in this LLC Asset Transfer Agreement, the Master Separation
Agreement or any other Ancillary Agreement, the LLC Assets shall not include any
of the following (collectively, the "PG&E Retained [Type of Assets]"):
-----------------------------
(i) the accounts receivable that arose primarily from the
conduct of the LLC Business set forth on Schedule 2.02(a)(i);
-------------------
(ii) the rights of PG&E to receive payment for services
primarily related to the LLC Business set forth on Schedule 2.02(a)(ii); and
--------------------
(iii) the Assets set forth in Schedule 2.02(a)(iii).
---------------------
(b) Reservation of Rights. LLC [and the LLC Subsidiaries]
---------------------
acknowledge[s] and agrees that the transfer of certain LLC Assets pursuant to
this LLC Asset Transfer Agreement is subject to: (i) certain reservation of
rights by PG&E in such LLC Assets, including reservation of easements, Real
Property Leases, rights of use and rights to obtain subdivision or lot line
adjustments, as set forth in Schedule 2.02(b)(i); or (ii) the grant by PG&E of
-------------------
certain rights of concurrent use of such LLC Assets to other Persons pursuant to
the agreements set forth in Schedule 2.02(b)(ii).
--------------------
[The language in this subsection will appear only in the Gen Asset Transfer
Agreement]
(c) [Gen FERC Boundary Land. With respect to the parcels of Gen Land
----------------------
that contain both FERC-licensed operational facilities, assets or rights and
land outside FERC-licensed project boundaries, including those parcels set forth
in Schedule 2.02(c) (collectively, the "Gen FERC Boundary Land"), Gen will apply
---------------- ----------------------
for lot line adjustments, subdivision approvals or other regulatory approvals
necessary to adjust the parcel boundaries of the Gen FERC
7
Boundary Land to conform, to the degree feasible, to the FERC-licensed project
boundaries or the location of such operational facilities, assets or rights.
(The portion of the Gen FERC Boundary Land lying outside the FERC-licensed
project boundaries being referred to as the "PG&E Reconveyance Land"). Promptly
following any boundary adjustment of a parcel of Gen FERC Boundary Land, Gen (or
one or more of its Subsidiaries) will reconvey to PG&E such portion of the PG&E
Reconveyance Land lying outside such adjusted parcel boundary Gen (or its
Subsidiary) shall retain, by easement or otherwise, such rights with respect to
the PG&E Reconveyance Land reconveyed to PG&E as are necessary, in Gen's (or its
Subsidiary's) sole discretion, to aid hydroelectric operations or relicensing,
including but not limited to, use for access, laydown, water conveyance system
maintenance and operation, and the right to grant conservation easements and to
perform habitat restoration. During the time period when lot line adjustment,
subdivision approval or any other regulatory approval required for parcel
boundary adjustment is pending with respect to a parcel of Gen FERC Boundary
Land: (i) PG&E shall be entitled to any net revenues from, and shall retain the
risk of loss and the responsibility for management and maintenance of, the PG&E
Reconveyance Land included in such parcel and shall pay the portion of the
property taxes attributable to the PG&E Reconveyance Land included in such
parcel and; (ii) Gen shall not transfer to a third party the PG&E Reconveyance
Land included in such parcel except subject to a deed restriction imposing on
such transferree the subdivision and reconveyance obligations set forth in this
Section 2.02(c).]
Section 2.03. Concurrent Grants to LLC. The Parties acknowledge that
certain Assets that are used in connection with the LLC Business will be
retained by PG&E or transferred to [names of other LLCs] [or one or more of
their Subsidiaries] pursuant to the applicable Asset Transfer Agreement because
such Assets are primarily used in connection with a Business other than the LLC
Business. With respect to certain of such Assets, PG&E and [names of other LLCs]
shall, [or shall cause their Subsidiaries to, as applicable,] (a) grant to LLC
the easements or other use rights set forth in Schedule 2.03(a), (b) execute the
----------------
leases set forth in Schedule 2.03(b) and (c) execute the other documents, if
----------------
any, set forth in Schedule 2.03(c), in each case on or prior to the date hereof.
----------------
Section 2.04. Assumption of Liabilities. Subject to the terms of this LLC
Asset Transfer Agreement, the Master Separation Agreement and the other
Ancillary Agreements, LLC [and the applicable LLC Subsidiary] hereby assumes as
of the date hereof and thereafter agrees to pay, perform and discharge all
Liabilities (other than the LLC Excluded Liabilities) primarily arising out of,
relating to or resulting from the LLC Assets or the LLC Business and the other
Liabilities set forth below, regardless of whether such Liabilities arose
before, on or after the date hereof, in each case in accordance with their
respective terms (collectively, the "LLC Liabilities"), including:
---------------
(a) Governmental Entitlements. All Liabilities arising under, or
-------------------------
related to compliance with, the LLC Governmental Entitlements transferred to LLC
[or the applicable LLC Subsidiary] pursuant to Section 2.01(g).
(b) Contract Liabilities. All Liabilities arising under the LLC
--------------------
Assigned Leases, the LLC Assigned Licenses and the LLC Assigned Contracts,
including Liabilities arising from breaches of any such agreements by PG&E,
which agreements are transferred to
8
LLC [or the applicable LLC Subsidiary] pursuant to Section 2.01(c)(ii), Section
2.01(e)(i), Section 2.01(f)(viii) and Section 2.01(h).
(c) Indebtedness. The Indebtedness of PG&E set forth in Schedule
------------ --------
2.04(c).
-------
(d) Accounts Payable. The accounts payable of PG&E that arose
----------------
primarily from the conduct of the LLC Business set forth on Schedule 2.04(d).
----------------
(e) Customer Deposits. All Liabilities with respect to the customer
-----------------
deposits primarily relating to the LLC Business, including the customer deposits
set forth in Schedule 2.04(e).
----------------
(f) Operating Liabilities. All Liabilities primarily relating to or
---------------------
arising out of the management, operation or conduct of the LLC Business,
including the Liabilities set forth in Schedule 2.04(f).
----------------
(g) Third Party Claims. All Third Party Claims that are LLC
------------------
Liabilities (as described in Section 8.09(_) of the Master Separation
Agreement).
(h) Employee Claims. Subject to the Employee Matters Agreement, all
---------------
Liabilities with respect to (i) any individual employed as of the date hereof as
a common law employee of LLC, provided such individual remains a common law
employee of LLC on the Effective Date, and (ii) any other individual designated
on Schedule 2.04(h) (each individual described in subsections (i) and (ii), an
----------------
"LLC Employee"), whether or not covered by workers' compensation or insurance,
------------
including any Liabilities relating to or arising out of any claim of an LLC
Employee based on or relating to employee compensation, benefits or similar
matters, actual or constructive termination of employment, injury suffered,
illness contracted, condition developed or exposure received in the course of
employment or based on alleged discrimination, harassment or violation of any
Law, including any such Liabilities that are Allowed Workers' Compensation
Claims.
(i) Environmental Liabilities. All Liabilities relating to
-------------------------
Environmental Matters or arising under any Environmental Laws (including (A) all
claims for death, bodily injury, personal injury and property damage relating to
Environmental Matters or arising under any Environmental Laws and (B) all
Environmental Claims) primarily arising out of, relating to or resulting from
(I) the activities, operations, acts or omissions at, from or with respect to
the LLC Business or the LLC Assets, and (II) Remediation of Releases or
threatened Releases of any Hazardous Materials arising out of, relating to or
resulting from activities, operations, acts or omissions at, from or with
respect to the LLC Business or the LLC Assets before, on or after the date
hereof, including any such Liabilities that are Allowed Environmental Claims and
specifically including the Liabilities set forth in Schedule 2.04(i).
----------------
(j) Violation of Law. All Liabilities for any violation of, or
----------------
failure by PG&E or its employees or agents to comply with, any Law primarily
relating to the LLC Assets or the LLC Business, including the Liabilities set
forth in Schedule 2.04(j).
----------------
9
(k) Intellectual Property. All Liabilities for any infringement of
---------------------
the Intellectual Property rights of any other Person primarily arising out of
the operation of the LLC Business, including the Liabilities set forth in
Schedule 2.04(k).
----------------
(l) Contingent Liabilities. LLC Exclusive Contingent Liabilities,
----------------------
including those set forth in Schedule 2.04(l).
----------------
(m) Fire Suppression, Pending Litigation, Tort and Other Liabilities.
----------------------------------------------------------------
All Liabilities arising from any accusation, allegation, notice, Action, claim,
demand or otherwise for personal injury, tangible or intangible property damage,
products liability, discrimination, employment or similar litigation, including
punitive, exemplary or similar damages or fines, penalties or similar charges
primarily arising out of, relating to, or resulting from activities, operations,
acts or omissions at, from or with respect to the LLC Business or the LLC Assets
before or after the date hereof, including any such Liabilities that are Allowed
Fire Suppression Claims, Allowed Pending Litigation Claims and Allowed Tort
Claims (other than Allowed Chromium Litigation Claims) and specifically
including the Liabilities set forth in Schedule 2.04(m).
----------------
(n) Shared Liabilities. LLC's percentage share of the Shared
------------------
Liabilities set forth in Schedule 2.04(n).
----------------
Section 2.05. Excluded Liabilities. Notwithstanding anything to the
contrary contained in this LLC Asset Transfer Agreement, the LLC Liabilities
shall not include any of the following, (collectively, the "LLC Excluded
------------
Liabilities") except as provided in the Master Separation Agreement or any other
-----------
Ancillary Agreement:
(a) Liabilities Relating to PG&E Retained [Type of Assets]. All
-----------------------------------------------------
Liabilities primarily arising from the PG&E Retained [Type of Assets], except to
the extent expressly assumed by LLC [or any of the LLC Subsidiaries] hereunder
or under another Ancillary Agreement.
(b) Accounts Payable. The accounts payable of PG&E that arose
----------------
primarily from the conduct of the LLC Business set forth on Schedule 2.05(b);
----------------
(c) Scheduled Excluded Liabilities. All Liabilities set forth in
------------------------------
Schedule 2.05(c).
----------------
(d) Allowed Claims. Allowed Claims other than those set forth in
--------------
Section 2.04.
Section 2.06. Delayed Transfer of Assets and Liabilities. Notwithstanding
any other provision of this LLC Asset Transfer Agreement, the transfer and
assignment to LLC [or the applicable LLC Subsidiary] of the LLC Delayed Transfer
Assets (including those set forth in Schedule 2.06A) and the LLC Delayed
--------------
Transfer Liabilities (including those set forth in Schedule 2.06B) shall be
--------------
governed by the terms and conditions set forth in Section 6.01 of the Master
Separation Agreement.
10
Section 2.07. Priority of Agreements and Schedules. Except as expressly
provided herein, in the event and to the extent that there is a conflict between
the provisions of this LLC Asset Transfer Agreement and the provisions of the
Master Separation Agreement, this LLC Asset Transfer Agreement shall prevail.
Subject to the terms of Section 6.03 of the Master Separation Agreement
regarding mistaken transfers or assignments, PG&E and LLC agree that, if any
Asset or Liability is specifically identified as being transferred or assigned
to LLC, [names of other LLCs] [or any of their respective Subsidiaries] in any
Appendix, Schedule or Exhibit to the applicable Asset Transfer Agreement, such
specific transfer or assignment shall prevail over the general provisions in the
Asset Transfer Agreements transferring or assigning to LLC, [names of other
LLCs] [or any of their respective Subsidiaries], as applicable, Assets and
Liabilities primarily related to their respective Businesses. Subject to the
terms of Section 6.03 of the Master Separation Agreement, in the event and to
the extent there is any conflict between the provisions of this LLC Asset
Transfer Agreement and any Appendix, Schedule or Exhibit to this LLC Asset
Transfer Agreement, the Appendix, Schedule or Exhibit, as the case may be, shall
prevail. Notwithstanding the foregoing, the Tax Matters Agreement shall prevail
in all cases.
ARTICLE III
Methods of Transfer
Section 3.01. Deliveries. On or prior to the date hereof:
(a) LLC Deliveries. LLC and the [applicable LLC Subsidiary] shall
--------------
have executed and delivered to PG&E:
(i) such Conveyancing and Assumption Instruments necessary to
evidence the valid and effective assumption of the LLC Liabilities by LLC [(and
the applicable LLC Subsidiary)] as set forth in the Schedules or as otherwise
designated to PG&E by LLC in writing; [and]
(ii) [the PC Bond Agreement/1/] [This subsection will only be
included in the Gen Asset Transfer Agreement.]
(ii) [the Environmental Indemnification Agreement/2/] [This
subsection will only be included where PG&E retains liability for environmental
cleanup and related liabilities.]
(b) PG&E Deliveries. PG&E shall have executed and delivered to LLC,
---------------
[or the applicable LLC Subsidiary]:
______________________________
/1/ Certain Assets to be transferred to Gen were originally financed or
refinanced with certain California Pollution Control Financing Authority,
Pollution Control Revenue Bonds (the "PC Bonds"). Pursuant to a PC Bond
Agreement, Gen will assume the obligation to perform, satisfy and/or comply with
certain terms, covenants, conditions or obligations under the documents
governing the issuance of the PC Bonds arising from and after the Effective Date
which are to be observed, performed, satisfied or complied with by the owner or
operator of such Assets under the terms of such documents.
/2/ These would include indemnification agreements relating to former
manufactured gas plant sites and similar sites as generally described in the
Plan.
11
(i) all Conveyancing and Assumption Instruments
necessary to evidence the transfer to LLC [or the applicable LLC Subsidiary] of
all of PG&E's right, title and interest in and to the LLC Assets;
(ii) the stock powers (or comparable instruments),
executed in blank, necessary to evidence the transfer, conveyance and assignment
to LLC [or the applicable LLC Subsidiary] of all stock certificates or other
instruments evidencing the LLC Securities; [and]
(iii) [the PC Bond Agreement] [This subsection will only
be included in the Gen Asset Transfer Agreement.]
(iii) [the Environmental Indemnification Agreements] [This
subsection will only be included where PG&E retains liability for environmental
cleanup and related liabilities.]
Section 3.02. Further Assurances. In addition to the actions otherwise
expressly provided in this LLC Asset Transfer Agreement, the Master Separation
Agreement and the other Ancillary Agreements, each Party shall use its
reasonable efforts to (a) execute and deliver, or cause to be executed and
delivered, such instruments and documents and take, or cause to be taken, such
additional or other actions as any other Party may reasonably request to
effectuate the purposes of this LLC Asset Transfer Agreement, the Master
Separation Agreement and the other Ancillary Agreements and to carry out the
terms hereof and thereof, and (b) take or cause to be taken all actions, and to
do, or cause to be done, all things reasonably necessary or appropriate under
applicable Laws, agreements or otherwise to consummate and make effective the
transactions contemplated by this LLC Asset Transfer Agreement, the Master
Separation Agreement and the other Ancillary Agreements, including entering into
amendatory agreements and making any filings and applications necessary or
appropriate in order to consummate the transactions contemplated by this LLC
Asset Transfer Agreement, the Master Separation Agreement and the other
Ancillary Agreements.
Section 3.03. Attorney-in-Fact. In the event that a dissolution,
liquidation or similar proceeding is initiated with respect to:
(a) PG&E, or PG&E otherwise ceases to conduct its business in
the regular course (other than (i) as contemplated by the Master Separation
Agreement or (ii) in connection with a change of control transaction in which
the acquiring company has satisfied the criteria of Section 5.06), PG&E hereby
irrevocably appoints LLC as its attorney-in-fact to execute any instruments,
documents or agreements reasonably deemed necessary by LLC to complete the
conveyances contemplated hereby, and LLC's certification that the conditions
precedent to this power of attorney have been met shall be conclusive, and all
Persons receiving a certification by LLC shall be entitled to rely upon it; and
(b) LLC, or LLC otherwise ceases to conduct its business in
the regular course (other than in connection with a change of control
transaction in which the acquiring company has satisfied the criteria of Section
5.06), LLC hereby irrevocably appoints PG&E as its attorney-in-fact to execute
any instruments, documents or agreements reasonably deemed necessary by PG&E to
complete the acquisition of the LLC Assets or assumption of LLC
12
Liabilities contemplated hereby, and PG&E's certification that the conditions
precedent to this power of attorney have been met shall be conclusive, and all
Persons receiving a certification by PG&E shall be entitled to rely upon it.
The appointments in Sections 3.03(a) and 3.03(b) above are each coupled with an
interest.
ARTICLE IV
DISCLAIMERS AND ACKNOWLEDGMENTS
Section 4.01. No Representations and Warranties.
(a) No Representations. LLC, [and the LLC Subsidiary,]
------------------
acknowledges and agrees that, except for the representations made by the Parties
pursuant to Section 5.05 and as otherwise expressly provided in any other
Ancillary Agreement, PG&E is not, in this LLC Asset Transfer Agreement or in any
other agreement or document contemplated by this LLC Asset Transfer Agreement or
the Master Separation Agreement (including the Conveyancing and Assumption
Instruments) or otherwise, making, and has not at any time made, any
representations or warranties of any kind, character or nature, express or
implied, including representing or warranting to LLC or any member of its Group
in any way as to:
(i) the LLC Business (including the prospects,
financial and otherwise, thereof);
(ii) the LLC Assets or LLC Liabilities transferred or
assumed as contemplated by this LLC Asset Transfer Agreement, the Master
Separation Agreement and the Conveyancing and Assumption Instruments and any
such other agreement or document;
(iii) any Consents required in connection with the
Master Separation Agreement and such transfers or assumptions;
(iv) the value or freedom from Security Interests of
the LLC Assets;
(v) the absence of any defenses or right of set-off or
freedom from counterclaim with respect to any claim or other of such LLC Assets,
including any LLC Receivables;
(vi) the existence of any defenses or right of set-off
or freedom from counterclaim with respect to any LLC Liability; or
(vii) the legal sufficiency of any assignment, document
or instrument delivered under this LLC Asset Transfer Agreement, the Master
Separation Agreement or the other Ancillary Agreements to convey title to any
LLC Asset or any other thing of value upon the execution, delivery, filing or
recording thereof.
(b) No Warranties. Notwithstanding anything to the contrary
-------------
expressly provided in the Conveyancing and Assumption Instruments and unless
expressly provided in any other Ancillary Agreement, all such Assets are
transferred "AS IS, WHERE IS, WITH ALL
13
FAULTS" (and in the case of real property, by means of quitclaim or similar form
of deed) and, subject to Sections 6.01 and 6.04 and Article VIII of the Master
Separation Agreement, LLC [or Subsidiary of LLC] shall bear the economic and
legal risks that any conveyances of such LLC Assets shall prove to be
insufficient to vest in LLC [or a Subsidiary of LLC] good and marketable title,
free and clear of Security Interests.
ARTICLE V
GENERAL PROVISIONS
Section 5.01. Counterparts. This LLC Asset Transfer Agreement may be
executed in counterparts, each of which shall be deemed to be an original copy
of this LLC Asset Transfer Agreement, but all of which, when taken together,
shall be deemed to constitute one and the same agreement.
Section 5.02. Complete Agreement. This LLC Asset Transfer Agreement,
the Master Separation Agreement and the other Ancillary Agreements and the
Appendices, Schedules and Exhibits referenced in or attached to this LLC Asset
Transfer Agreement, the Master Separation Agreement and the other Ancillary
Agreements constitute the entire agreement among the Parties with respect to the
subject matter hereof and thereof and supersede all prior agreements, both
written and oral, with respect to such subject matter.
Section 5.03. Waivers. No failure to exercise and no delay in
exercising, on the part of any Party, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. To the maximum extent permitted by applicable Law,
(a) no claim or right arising out of this LLC Asset Transfer
Agreement or of the documents referred to in this LLC Asset Transfer Agreement
shall be released, waived or renounced, in whole or in part, by the Party
holding such claim or right unless in writing signed by such Party;
(b) no waiver that may be given by a Party shall be
applicable except in the specific instance for which it is given; and (c) no
notice to or demand on a Party shall be deemed to be a waiver of any obligation
of such Party or of the right of the Party giving such notice or demand to take
further action without notice or demand as provided in this LLC Asset Transfer
Agreement or the documents referred to in this LLC Asset Transfer Agreement.
Section 5.4. Amendments and Waivers. Neither this LLC Asset Transfer
Agreement nor any terms, covenants, agreements, conditions or provisions hereof
may be amended, supplemented or modified except in accordance with this Section
5.04. The Parties may, from time to time, (a) enter into written amendments,
supplements or modifications hereto for the purpose of adding or modifying any
provisions to this LLC Asset Transfer Agreement or changing in any manner the
rights of the Parties hereunder; provided, that any such amendments, supplements
--------
or modifications are consistent with the Plan, the Confirmation Order and the
14
Master Separation Agreement or (b) waive, on such terms and conditions as may be
specified in writing, any of the requirements of this LLC Asset Transfer
Agreement; provided, that any such waiver is consistent with the Plan and the
--------
Confirmation Order.
Section 5.05. Authority. Each Party represents to the others that:
(a) it has the corporate or other requisite power or
authority to execute, deliver and perform this LLC Asset Transfer Agreement;
(b) the execution, delivery and performance of this LLC Asset
Transfer Agreement by it has been duly authorized by all necessary corporate or
other requisite actions;
(c) it has duly and validly executed and delivered this LLC
Asset Transfer Agreement; and
(d) this LLC Asset Transfer Agreement is a legal, valid and
binding obligation of such Party, enforceable against it in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other similar Laws affecting creditors' rights generally and general
principles of equity.
Section 5.06. Assignment. No Party to this LLC Asset Transfer Agreement
shall (a) consolidate with or merge into any Person or permit any Person to
consolidate with or merge into such Party (other than a merger or consolidation
in which the Party is the surviving or continuing Person or a merger effected
solely to change the domicile of such Party), or (b) sell, assign, transfer,
lease or otherwise dispose of, in one transaction or a series of related
transactions, all or more than fifty-one percent (51%) of its assets (based on
the greater of (i) the book value of such Party's assets as shown on its most
recently available financial statements and (ii) the fair market value of such
Party's assets as of the end of the period reported in such financial
statements), unless the resulting, surviving or transferee Person expressly
assumes, by instrument in form and substance reasonably satisfactory to the
other Parties, all of the obligations of the applicable Party under this LLC
Asset Transfer Agreement. Except as expressly provided above, neither this LLC
Asset Transfer Agreement nor any of the rights, interests or obligations
hereunder shall be assigned or delegated, directly or indirectly, by operation
of law or otherwise, by any Party without the prior written consent of the other
Party, and any attempt to assign or delegate without such consent shall be void.
Section 5.07. Successors and Assigns. Subject to Section 5.06, this LLC
Asset Transfer Agreement shall be binding in all respects upon, inure to the
benefit of and be enforceable by the successors and permitted assigns of the
Parties.
Section 5.08. Third Party Beneficiaries. This LLC Asset Transfer
Agreement and all of its provisions and conditions are solely for the benefit of
the Parties and the members of their Group and shall not be deemed to confer
upon third parties any remedy, claim, liability, right of reimbursement, cause
of action or other right in excess of those existing without reference to this
LLC Asset Transfer Agreement.
Section 5.09. Governing Law. This LLC Asset Transfer Agreement and any
other agreements entered into in connection with the transactions contemplated
hereby (except for the
15
Conveyancing and Assumption Instruments, which shall be governed by local Law),
shall be governed by, and construed and enforced in accordance with, the Laws of
the State of California without regard to the principles of conflicts of Laws
thereunder, except to the extent that certain matters are preempted by federal
Law. Except as expressly provided in this Section 5.09, the scope of the
foregoing governing law provision is intended to be all-encompassing of any and
all Agreement Disputes that may be brought in any court or in any mediation or
arbitration proceeding and that relate to the subject matter of this LLC Asset
Transfer Agreement, including any contract claims, tort claims, breach of duty
claims and all other common law and statutory claims.
Section 5.10. Severability. Any provision of this LLC Asset Transfer
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. Furthermore, if
any provision of this LLC Asset Transfer Agreement or the application thereof to
a Person or circumstance is determined by a nonappealable decision by a court,
administrative agency or arbitrator with jurisdiction of the matter to be
invalid, void or unenforceable in any respect, the remaining provisions of this
LLC Asset Transfer Agreement, or the application of such provision to Persons or
circumstances other than those as to which it has been held invalid, void or
unenforceable, shall remain in full force and effect and in no way be affected,
impaired or invalidated thereby, so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any Party. Upon such a determination, the Parties shall negotiate in
good faith to modify this LLC Asset Transfer Agreement so as to effect the
original intent of the Parties as closely as possible; provided, that such
--------
modification is consistent with the Plan and the Confirmation Order.
Section 5.11. Reproduction of Documents. This LLC Asset Transfer Agreement,
and all documents delivered pursuant to this LLC Asset Transfer Agreement (other
than the Conveyancing and Assumption Instruments), including Consents, waivers
and modifications that may hereafter be executed and documents received by any
Party at the date hereof in connection with the transactions contemplated
hereby, may be reproduced by any Party by any photographic or other similar
process and such Party may destroy any original document so reproduced. Each
Party agrees and stipulates that any such reproduction shall be admissible in
evidence as the original itself in any Action (whether or not the original is in
existence and whether or not such reproduction was made by the Party in the
regular course of business) and that any enlargement, facsimile or further
reproduction of such reproduction shall be admissible in evidence to the same
extent.
Section 5.12. Dispute Resolution. Except as otherwise limited by Law,
resolution of any and all controversies, disputes or claims arising out of,
relating to, in connection with or resulting from this LLC Asset Transfer
Agreement or any other Ancillary Agreement (or any transaction contemplated
hereby or thereby), including as to the interpretation, performance,
non-performance, validity, breach or termination of this LLC Asset Transfer
Agreement, whether the claim is based on contract, tort, regulation, rule,
statute or constitution and any claims raising questions of Law, whether arising
before or after termination of this LLC Asset Transfer
16
Agreement (collectively, "Agreement Disputes"), shall be exclusively governed by
------------------
and settled in accordance with the provisions of Article X of the Master
Separation Agreement.
Section 5.13. Notices. All notices, consents, requests, waivers, claims or
other communications required or permitted under this LLC Asset Transfer
Agreement shall be in writing and shall be deemed effectively given upon the
earliest of (a) when received, (b) when delivered personally (with written
confirmation of receipt), (c) when delivered by facsimile (with receipt of
appropriate confirmation by voice or otherwise), (d) one (1) Business Day after
being deposited with a nationally recognized overnight courier service (receipt
requested) or (e) four (4) Business Days after being deposited with the U.S.
mail, registered or certified, postage prepaid, and in each case addressed to
the Parties as set forth in Section 12.05 of the Master Separation Agreement
[(it being agreed and understood that so long as any LLC Subsidiary continues to
be a wholly owned Subsidiary of LLC any notice, consent, request, waiver, claim
or other communication required or permitted to be sent to or requested from any
such LLC Subsidiary shall be deemed effectively given if delivered to LLC
pursuant to the terms of this LLC Asset Transfer Agreement)]. A Party may, by
written notice to the other Party, change the address or facsimile number to
which notices are to be given. [If an LLC Subsidiary ceases to be a wholly owned
Subsidiary of LLC, such LLC Subsidiary shall provide the other Parties with
written notice of the address and facsimile number to which notices are to be
given to such LLC Subsidiary.]
Section 5.14. Responsibility for Expenses.
(a) Transaction Expenditures. PG&E shall bear all costs and expenses
------------------------
incurred in connection with the transactions contemplated by this LLC Asset
Transfer Agreement that are incurred or should have been incurred under the
terms of this LLC Asset Transfer Agreement, Master Separation Agreement and the
Plan on or before the Effective Date, other than those costs and expenses
initially incurred by Parent or its Affiliates which shall not be paid by PG&E
unless Parent has sought and obtained authority from the Bankruptcy Court for
reimbursement by PG&E.
(b) Expenses Incurred or Accrued after the Effective Date. Except as
-----------------------------------------------------
otherwise set forth in this LLC Asset Transfer Agreement, the Master Separation
Agreement or any other Ancillary Agreement, from and after the Effective Date
each Party shall bear its own costs and expenses incurred in connection with the
transactions contemplated by this LLC Asset Transfer Agreement.
17
IN WITNESS WHEREOF, the Parties have executed this LLC Asset Transfer
Agreement as of the date first above written.
PACIFIC GAS AND ELECTRIC COMPANY,
a California corporation
By __________________________________________
Name:
Title:
__________________LLC,
a California limited liability company
By __________________________________________
Name:
Title:
[Signature blocks for LLC Subsidiaries if any]
18
LIST OF SCHEDULES AND EXHIBITS
SCHEDULES TITLE
[1.0 Schedule of Subsidiaries]
2.01(a) Schedules of [Business Specific Operational Facilities]
[2.01(b) Schedule of ETrans Telecommunications Facilities]
[2.01(b)(i) Schedule of ETrans Telecommunications Circuits]
[2.01(b)(ii) Schedule of ETrans Telecommunications Towers]
[2.01(b)(iii) Schedule of ETrans Telecommunications Microwave Equipment]
2.01(c)(i) Schedule of LLC Land
2.01(c)(ii) Schedule of LLC Real Property Leases
2.01(c)(iii) Schedule of LLC Easements
2.01(c)(iv) Schedule of LLC Subsurface and Other Rights
2.01(c)(v) Schedule of LLC Other Real Property Rights
2.01(d) Schedule of LLC Securities
2.01(e)(i) Schedule of LLC Personal Property Leases
2.01(e)(ii) Schedule of LLC Office Furniture, Equipment, Other
Furnishings and Supplies
2.01(e)(iii) Schedule of LLC Information Technology Assets
2.01(e)(iv) Schedule of LLC Telecommunications Assets
2.01(e)(v) Schedule of ▇▇▇ ▇▇▇▇▇, Records and Other Business Documents
2.01(e)(vi) Schedule of LLC Vehicles, Rolling Stock and Airplanes
2.01(e)(vii) Schedule of LLC Raw Materials and Inventories
2.01(e)(viii) Schedule of LLC Fuel Stock, Fuel Supplies, Tools and Parts
2.01(e)(ix) Schedule of Other LLC Tangible Personal Property
2.01(f)(i) Schedule of LLC Trademarks and Service Marks
2.01(f)(ii) Schedule of LLC Common Law Trademarks, Service Marks and
Trade Names
2.01(f)(iv) Schedule of LLC Patents
2.01(f)(v) Schedule of LLC Domain Names
2.01(f)(vi) Schedule of LLC Toll Free Telephone Numbers
2.01(f)(vii) Schedule of LLC Proprietary Information
2.01(f)(viii) Schedule of LLC Assigned Licenses
2.01(f)(ix) Schedule of LLC Proprietary Software
2.01(g) Schedule of LLC Governmental Entitlements
2.01(h) Schedule of LLC Assigned Contracts
2.01(i) Schedule of LLC Notes Receivable
2.01(j) Schedule of LLC Accounts Receivable
2.01(k) Schedule of LLC Payment Rights
2.01(l) Schedule of LLC Deposits and Prepaid Expenses
2.01(n) Schedule of LLC Claims
2.01(p) Schedule of LLC Exclusive Contingent Gains
2.02(a)(i) Schedule of PG&E Retained Accounts Receivable
2.02(a)(ii) Schedule of PG&E Retained Payment Rights
2.02(a)(iii) Schedule of PG&E Retained [Type of Assets]
SCHEDULES TITLE
2.02(b)(i) Schedule of PG&E Reservation Rights
2.02(b)(ii) Schedule of PG&E Third-Party Concurrent Grants
[2.02(c) Schedule of Gen FERC Boundary Land]
2.03(a) Schedule of PG&E Easement Grants
2.03(b) Schedule of PG&E Leases
2.03(c) Schedule of PG&E Other Concurrent Grants to LLC
2.04(c) Schedule of LLC Indebtedness
2.04(d) Schedule of LLC Accounts Payable
2.04(e) Schedule of LLC Customer Deposits
2.04(f) Schedule of LLC Operating Liabilities
2.04(h) Schedule of LLC Employees--Employee Claims
2.04(i) Schedule of LLC Environmental Liabilities
2.04(j) Schedule of LLC Liabilities for Violation of Law
2.04(k) Schedule of LLC Intellectual Property Liabilities
2.04(l) Schedule of LLC Exclusive Contingent Liabilities
2.04(m) Schedule of LLC Tort Liabilities
2.04(n) Schedule of LLC Shared Liabilities
2.05(b) Schedule of LLC Excluded Accounts Payable
2.05(c) Schedule of LLC Excluded Liabilities
2.06A Schedule of LLC Delayed Transfer Assets
2.06B Schedule of LLC Delayed Transfer Liabilities
APPENDIX TITLE
A Glossary of Terms
APPENDIX A
GLOSSARY OF TERMS
"Action" means any action, suit, arbitration, inquiry, proceeding or
------
investigation by or before any Governmental Authority or any arbitration
tribunal.
"Affiliate" means, when used with respect to a specified Person,
---------
another Person that directly, or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with the Person
specified.
"Agreement Dispute" has the meaning set forth in Section 5.12 of the
-----------------
LLC Asset Transfer Agreement.
"Allowed" has the meaning set forth in the Plan.
-------
"Allowed Claim" has the meaning set forth in the Plan.
-------------
"Ancillary Agreement" means the Asset Transfer Agreements, the Employee
-------------------
Matters Agreement, the Tax Matters Agreement, the Trademark and Service ▇▇▇▇
License Agreement, the Trademark Assignment, the Records Access Agreement, the
PC Bond Agreements, the Environmental Indemnification Agreements and the
Settlement and Stanislaus Commitments.
"Asset Transfer Agreements" means, collectively, the ETrans Asset
-------------------------
Transfer Agreement, the GTrans Asset Transfer Agreement and the Gen Asset
Transfer Agreement.
"Assets" means assets, properties and rights (including goodwill),
------
wherever located (including in the possession of vendors or other third parties
or elsewhere), whether real, personal or mixed, tangible, intangible or
contingent, in each case whether or not recorded or reflected or required to be
recorded or reflected on the books and records or financial statements of any
Person, including:
(i) all accounting and other books, records and files whether in
paper, microfilm, microfiche, computer tape or disc, magnetic tape or any other
form;
(ii) all apparatus, computers and other electronic data processing
equipment, fixtures, machinery, equipment, capital and other spares, furniture,
office equipment, automobiles, trucks, aircraft and other transportation
equipment, special and general tools, test devices, prototypes and models and
other tangible personal property;
(iii) all inventories of materials, parts, raw materials, supplies,
work-in-process, consigned goods, finished goods, packaging and all products and
product samples;
(iv) all interests in real property of whatever nature, including
easements, leases and licenses, whether as owner, mortgagee or holder of a
Security Interest in real property, lessor, sublessor, lessee, sublessee or
otherwise;
A-1
(v) all buildings and other improvements to real property;
(vi) all interests in any capital stock or other equity interests
of any Subsidiary or any other Person, all bonds, notes, debentures or other
securities issued by any Subsidiary or any other Person, all loans, advances or
other extensions of credit or capital contributions to any Subsidiary or any
other Person and all other investments in securities of any Person;
(vii) all license agreements, leases of personal property, open
purchase orders for raw materials, supplies, parts or services, unfilled orders
for the manufacture and sale of products, other sales or purchase agreements,
distributions arrangements, and other contracts, agreements or commitments;
(viii) all deposits, letters of credit and performance and surety
bonds;
(ix) all technical information, data, research and development
information, engineering drawings, operating and maintenance manuals, and
materials and analyses prepared by consultants and other third parties;
(x) all Intellectual Property;
(xi) all cost information, sales and pricing data, customer
prospect lists, supplier records, customer and supplier lists, customer and
vendor data, correspondence and lists, product literature, artwork, design,
development and manufacturing files, vendor and customer drawings, formulations
and specifications, quality records and reports and other books, records,
studies, surveys, reports, plans and documents;
(xii) all prepaid expenses, trade accounts and other accounts and
notes receivables;
(xiii) all rights under contracts, agreements, warranties or
guarantees, all claims or rights or judgments against any Person, all rights in
connection with any bids or offers and all claims, choses in action, rights of
recovery and rights of set-off or similar rights, whether accrued or contingent,
and refunds and deposits;
(xiv) all rights under insurance policies and all rights in the
nature of insurance, indemnification or contribution;
(xv) all licenses, permits, approvals and authorizations which have
been issued by any Governmental Authority;
(xvi) advertising and marketing materials and other printed or
written materials;
(xvii) employee contracts, including any rights thereunder to
restrict an employee or former employee from competing in certain respects and
personnel and medical files and records;
(xviii) all computer programs and other software (in executable or
source code format), including operating software, applications, networks
software, firmware, middleware, design software, design tools, test and
diagnostic software and systems configurations (and all
A-2
documentation, schematics, drawings, designs, manuals, reports, records,
instructions, studies, surveys, plans, books or other written materials (whether
in hard copy or magnetic form) relating to or including the foregoing) but
excluding product-related computer programs and other software;
(xix) Cash and cash equivalents, bank accounts, lock boxes and other
deposit arrangements; and
(xx) interest rate, currency, commodity or other swap, collar, cap or
other hedging or similar agreements or arrangements.
"Bankruptcy Code" means title 11 of the United States Code, as amended
---------------
from time to time.
"Bankruptcy Court" means the United States Bankruptcy Court for the
----------------
Northern District of California having jurisdiction over the case under chapter
11 of the Bankruptcy Code commenced by PG&E on April 6, 2001 and, to the extent
of any reference under section 157 of title 28 of the United States Code, the
unit of such District Court under section 151 of title 128 of the United States
Code.
"Business Day" means any day other than a Saturday or Sunday or any
------------
other day on which commercial banks in San Francisco, California, or New York,
New York, are required or authorized to close by law or executive order.
"Businesses" means the PG&E Business, the ETrans Business, the GTrans
----------
Business and the Gen Business.
"Cash" means legal tender of the United States of America.
----
"Claim" has the meaning set forth in the Plan.
------
"Chromium Litigation Claims" has the meaning set forth in the Plan.
--------------------------
"Confirmation Order" means the order of the Bankruptcy Court
------------------
confirming the Plan pursuant to section 1129 of the Bankruptcy Code.
"Consent" means any approval, authorization, consent, certificate or
-------
waiver required to be obtained from any Governmental Authority or other third
party for the consummation of a specified transaction, including any option,
right of first refusal or other similar right of a third party triggered by a
specified transaction.
"Contingent Gain" means any claim, right, cause of action, warranty,
---------------
guarantee, refund, right of recovery or right of set-off, including any right or
claim against a supplier or customer (for the purposes of this definition, a
"claim") of PG&E, ETrans, GTrans or Gen or any member of their respective
Groups, whenever arising, against any Person other than Parent, PG&E, ETrans,
GTrans or Gen or any member of their respective Groups, if and to the extent
that (a) such claim has accrued as of the Transfer Date (based on then existing
Law) and (b) the existence or scope of the obligation (arising from such claim)
of such other Person as of the
A-3
Transfer Date was not acknowledged, fixed or determined in any material respect,
due to a dispute or other uncertainty as of the Transfer Date or as a result of
the failure of such claim to have been discovered or asserted as of the Transfer
Date. A claim meeting the foregoing definition shall be considered a Contingent
Gain, regardless of whether there was any Action pending, threatened or
contemplated as of the Transfer Date with respect thereto. For purposes of the
foregoing, a claim shall be deemed to have accrued as of the Transfer Date if
all the elements of the claim necessary for its assertion shall have occurred on
or prior to the Transfer Date, such that the claim, were it asserted in an
Action on or prior to the Transfer Date, would not be dismissed by a court on
ripeness or similar grounds. Notwithstanding the foregoing, none of the
following shall be deemed to be a Contingent Gain: (i) any payment to any member
of the Parent Group, the PG&E Group, the ETrans Group, the GTrans Group or the
Gen Group pursuant to or in respect of the Master Separation Agreement or any of
the Ancillary Agreements or Operating Agreements, (ii) any Insurance Proceeds,
(iii) any PG&E Retained [Type of] Asset, (iv) any reversal of any litigation
reserve or other reserve, or (v) any matters relating to Taxes (which are
governed by the Tax Matters Agreement).
"Contingent Liability" means any Liability, other than Liabilities for
--------------------
Taxes (which are governed by the Tax Matters Agreement), of Parent, PG&E,
ETrans, GTrans or Gen or any member of their respective Groups, whenever arising
(including any Liability relating to, arising out of, or resulting from any act
or failure to act by any director, officer, employee or Representative of PG&E,
ETrans, GTrans or Gen or any member of their respective Groups, whether or not
such act or failure to act was within such Person's authority), to any Person
other than Parent, PG&E, ETrans, GTrans or Gen or any member of their respective
Groups, if and to the extent that (a) such Liability has accrued as of the
Transfer Date (based on then existing Law) and (b) the existence or scope of the
obligation of PG&E, ETrans or GTrans or any of their respective Groups as of the
Transfer Date with respect to such Liability was not acknowledged, fixed or
determined in any material respect, due to a dispute or other uncertainty as of
the Transfer Date or as a result of the failure of such Liability to have been
discovered or asserted as of the Transfer Date (it being understood that the
existence of a litigation reserve or other reserve with respect to any Liability
shall not be sufficient for such Liability to be considered acknowledged, fixed
or determined). In the case of any Liability, a portion of which had accrued as
of the Transfer Date and a portion of which accrues after the Transfer Date,
only that portion that had accrued as of the Transfer Date shall be considered a
Contingent Liability. For purposes of the foregoing, a Liability shall be deemed
to have accrued as of the Transfer Date if all the elements necessary for the
assertion of a claim with respect to such Liability shall have occurred on or
prior to the Transfer Date, such that the claim, were it asserted in an Action
on or prior to the Transfer Date, would not be dismissed by a court on ripeness
or similar grounds. For purposes of clarification of the foregoing, the Parties
agree that no Liability relating to, arising out of, or resulting from any
obligation of any Person or to satisfy any obligations accrued under any Plan
(as defined in the Employee Matters Agreement) as of the Effective Date, shall
be deemed to be a Contingent Liability.
"Conveyancing and Assumption Instruments" means, collectively, the
---------------------------------------
various deeds, agreements, instruments and other documents entered into to
effect the transfers of Assets and assumptions of Liabilities contemplated by
the Master Separation Agreement and the Asset Transfer Agreements.
A-4
"Effective Date" has the meaning set forth in the Plan.
--------------
"Employee Matters Agreement" means the Employee Matters Agreement
--------------------------
between Parent and PG&E, as the same may be amended from time to time.
"Environmental Claims" has the meaning set forth in the Plan.
--------------------
"Environmental Indemnification Agreements" means those certain
----------------------------------------
Environmental Indemnification Agreements dated as of the Transfer Date between
PG&E and other parties to the Asset Transfer Agreements, as the same may be
amended from time to time.
"Environmental Laws" means and includes any federal, state, or local
------------------
statute, law, ordinance, code, rule, regulation, order, or decree regulating, or
relating to protection of human health or the environment, or regulating or
imposing liability or standards of conduct concerning the use, storage,
treatment, transportation, migration, manufacture, refinement, handling,
production or disposal of any Hazardous Materials, as now or at any time
hereafter in effect including, without limitation, the California Hazardous
Waste Control Law, the Safe Drinking Water and Toxic Enforcement Act of 1986,
Cal. Health & Safety Code(S)(S)25249.5 et seq., the ▇▇▇▇▇▇-Cologne Water Quality
Control Act, Cal. Wat. Code(S)(S)13020 et seq., the Hazardous Substances Account
Act, California Health and Safety Code(S)(S)25100 et seq.,(S)(S)25300 et
seq.,(S)(S)25281(f),(S)(S)25501(k),(S)(S)25501(l),(S)(S)25501(m), and Section
13050(p) of the Water Code, the Federal Comprehensive Environmental Response,
Compensation and Liability Act, as amended, 42 U.S.C.(S)(S)9601 et seq., as
amended by the Superfund Amendments and Reauthorization Act, 42 U.S.C.(S)(S)9601
et seq., the Federal Oil Pollution Act of 1990, 33 U.S.C.(S)(S)2701, et seq.,
the Federal Toxic Substances Control Act, 15 U.S.C.(S)(S)2601 et seq., the
Federal Resource Conservation and Recovery Act as amended, 42 U.S.C.(S)(S)6901
et seq., the Emergency Planning and Community Right-to-Know Act, 42
U.S.C.(S)11011, et seq., the Atomic Energy Act, 42 U.S.C.(S)2011 et seq., the
Federal Hazardous Materials Transportation Act, 49 U.S.C.(S)(S) 1801 et seq.,
the Federal Clean Air Act 42 U.S.C.(S)(S)7401 et seq., the Federal Water
Pollution Control Act, 33 U.S.C.(S)(S)1251 et seq., Safe Drinking Water Act, 33
U.S.C.(S)300f, et seq., the River and Harbors Act of 1899, 33 U.S.C.(S)(S)401 et
seq., the National Emission Standard for Hazardous Air Pollutants for Asbestos,
40 C.F.R.(S)(S) 61.140 et seq., the OSHA Construction Standard, 29
C.F.R.(S)(S)1926.1001 et seq., Federal Insecticide, Fungicide and Rodenticide
Act, 7 U.S.C.(S)136 et seq., Title X of Pub.L. 102.550 (Oct. 28, 1992), and all
rules and regulations of the EPA, the California Environmental Protection
Agency, or any other state or federal department, board, or agency, or any other
agency or governmental board or entity having jurisdiction, as any of the
foregoing have been, or are hereafter amended from time to time.
"Environmental Matters" means all matters relating in any way to (i)
---------------------
soil, air and water and groundwater pollution or contamination, including any
on-site or off-site pollution or contamination, (ii) damages to the natural
environment or natural resources, (iii) Releases or discharges of waste,
Hazardous Materials, or pollutants or contaminants, or (iv) recycling or
disposal of Hazardous Materials or wastes (including garbage, refuse, slag,
sludge and other discarded materials, whether solid, liquid, semisolid or
gaseous and whether on-site or off-site).
"EPA" means the United States Environmental Protection Agency or any
---
successor agency.
A-5
"ETrans" means ETrans LLC, a California limited liability company and a
------
wholly owned subsidiary of Newco.
"ETrans Asset Transfer Agreement" means an Asset Transfer, Assignment
-------------------------------
and Assumption Agreement, the form of which is attached to the Master Separation
Agreement as Exhibit B, together with the Schedules, Appendices and Exhibits
thereto, entered into as of the Transfer Date by and between PG&E and ETrans and
any Subsidiary of ETrans.
"ETrans Business" has the meaning set forth in Section 2.01 of the
---------------
ETrans Asset Transfer Agreement.
"ETrans Group" means ETrans and the Subsidiaries of ETrans after giving
------------
effect to the Separation and Spin-Off.
"ETrans Telecommunications Facilities" has the meaning set forth in
------------------------------------
Section 2.01(b) of the LLC Asset Transfer Agreement.
"ETrans Telecommunications Circuits" has the meaning set forth in
----------------------------------
Section 2.01(b)(i) of the LLC Asset Transfer Agreement.
"ETrans Telecommunications Towers" has the meaning set forth in Section
--------------------------------
2.01(b)(ii) of the LLC Asset Transfer Agreement.
"ETrans Telecommunications Microwave Equipment" has the meaning set
---------------------------------------------
forth in Section 2.01(b)(iii) of the LLC Asset Transfer Agreement.
"Fire Suppression Claims" has the meaning set forth in the Plan.
-----------------------
"GAAP" means United States generally accepted accounting principles.
----
"Gen" means Electric Generation LLC, a California limited liability
---
company and a wholly owned subsidiary of Newco.
"Gen Asset Transfer Agreement" means an Asset Transfer, Assignment and
----------------------------
Assumption Agreement, the form of which is attached to the Master Separation
Agreement as Exhibit D, together with the Schedules, Appendices and Exhibits
thereto, entered into as of the Transfer Date by and between PG&E and Gen and
any Subsidiary of Gen.
"Gen Business" has the meaning set forth in Section 2.01 of the Gen
------------
Asset Transfer Agreement.
"Gen FERC Boundary Land" has the meaning set forth in Section 2.02(c)
----------------------
of the Gen Asset Transfer Agreement.
"Gen Group" means Gen and the Subsidiaries of Gen after giving effect
---------
to the Separation and Spin-Off.
A-6
"Governmental Authority" means any government or any agency, bureau,
----------------------
board, commission, court, department, official, political subdivision, tribunal
or other instrumentality of any government, whether federal, state or local,
domestic or foreign.
"Governmental Entitlements" means, collectively, those certain
-------------------------
governmental permits, licenses, certificates, approvals, franchises,
concessions, authorizations, consents, orders and variances issued by a
Governmental Authority to PG&E (or its predecessor in interest), as amended from
time to time, and applications therefor.
"Group" means, with respect to any Party, such Party and the
-----
Subsidiaries of such Party giving effect to the Separation and the Spin-Off.
"GTrans" means GTrans LLC, a California limited liability company and a
------
wholly owned subsidiary of Newco.
"GTrans Asset Transfer Agreement" means an Asset Transfer, Assignment
-------------------------------
and Assumption Agreement, the form of which is attached to the Master Separation
Agreement as Exhibit C, together with the Schedules, Appendices and Exhibits
thereto, entered into as of the Transfer Date by and between PG&E and GTrans and
any Subsidiary of GTrans.
"GTrans Business" has the meaning set forth in Section 2.01 of the
---------------
GTrans Asset Transfer Agreement.
"GTrans Group" means GTrans and the Subsidiaries of GTrans after giving
------------
effect to the Separation and Spin-Off.
"Hazardous Materials" means and includes those Substances which are now
-------------------
or hereafter contained in any list of hazardous substances adopted by the United
States EPA, "hazardous materials" as defined in Section 2782.6(d) of the
California Civil Procedure Code; "waste" as defined in Section 13050(d) of the
California Water Code or any list of Substances designated by Congress or the
EPA or which are defined as hazardous, toxic, pollutant, infectious, flammable
or radioactive by any of the Environmental Laws, and, whether or not included in
such lists, shall be deemed to include all Substances containing petroleum,
petroleum products, natural gas, natural gas liquids, asbestos, and
polychlorinated biphenyls and any chemicals known to cause cancer or
reproductive toxicity as published pursuant to California Health and Safety Code
ss.ss.25249.5 et seq. and any other Substance that, because of its quantity,
concentration, or physical or chemical characteristics, exposure to which is
limited or regulated for health and safety reasons by any governmental
authority, or which poses a significant present or potential hazard to human
health and safety, or to the environment, if released into the workplace or the
environment.
"Holdings" means PG&E Holdings, LLC, a Delaware limited liability
--------
company.
"Indebtedness" means the aggregate amount, without duplication, of (a)
------------
all obligations for borrowed money, (b) all obligations evidenced by bonds,
debentures, notes or other similar instruments, (c) all obligations to pay the
deferred purchase price of property or services (excluding items classified as
accounts payable under the LLC Asset Transfer Agreement), (d) all capital lease
obligations, (e) all obligations or Liabilities of others secured by a Lien on
A-7
any Asset, whether or not such obligation or Liability is assumed, (f) all
obligations or Liabilities of others guaranteed by such applicable Person, and
(g) any other obligations or Liabilities which are required by GAAP to be shown
as debt on the balance sheet.
"Insurance Proceeds" means, with respect to any insured Person, those
------------------
monies, net of any applicable premium adjustment, retrospectively calculated
premium, deductible, retention or cost of reserve paid or held by or for the
benefit of such insured, which are either: (i) received by an insured from an
insurer or (ii) paid by an insurer on behalf of an insured.
"Intellectual Property" means the intellectual property rights owned,
---------------------
licensed to or otherwise held throughout the world by any Person, including, all
of the rights, title and interests in the following: (i) all United States and
foreign patents, patent applications (including any continuations,
continuation-in-part and divisionals), patent applications under preparation,
invention disclosures and invention disclosures under preparation, (ii) all
United States and foreign registered and unregistered copyrights and mask works,
including applications and applications under preparation, (iii) all United
States and foreign registered and unregistered trademarks, trade names, trade
dress, service marks, services names, artwork, logos and other marks, including
applications and applications under preparation, (iv) all trade secrets,
know-how, ideas, concepts, discoveries, improvements, processes, procedures,
methods, recipes, formulae, data and specifications, (v) all product-related
computer programs and other software (in executable or source code format),
including operating software, applications, networks software, firmware,
middleware, design software, design tools, test and diagnostic software and
systems configurations, and (vi) all documentation, schematics, drawings,
designs, manuals, reports, records, instructions, studies, surveys, plans, books
or other written materials (whether in hard copy or magnetic form) relating to
or including any of the (i) through (v) above.
"Law" means all laws, constitutions, statutes, ordinances, regulations,
---
rules and orders of any Governmental Authority, in each case as amended,
modified, codified or reenacted, in whole or in part, and in effect from time to
time.
"Liabilities" means any and all debts, liabilities, obligations,
-----------
responsibilities, charges, claims, actions, injuries, losses, damages of any
kind, fines, penalties and sanctions, absolute or contingent, matured or
unmatured, liquidated or unliquidated, foreseen or unforeseen, joint, several or
individual, asserted or unasserted, accrued or unaccrued, known or unknown,
whenever arising, including those arising under or in connection with any Law,
Action, threatened Action, order or consent decree of any Governmental Authority
or any award of any arbitrator, and those arising under any contract, guarantee,
commitment or undertaking, whether sought to be imposed by a Governmental
Authority, or any other Person, whether based in contract, tort, implied or
express warranty, strict liability, criminal or civil statute, or otherwise, and
including any costs, expenses, interest, attorneys' fees, disbursements and
expenses of counsel, experts' and consultants' fees and costs related thereto or
to investigating, preparing for or defending or settling any of the foregoing.
"Lien" means any interest in property securing an obligation owed to,
----
or a claim by, any Person other than the owner of the property, whether such
interest shall be based on the common law, civil law, statute, civil code or
contract, whether or not such interest shall be recorded or perfected and
whether or not such interest shall be contingent upon the occurrence of some
A-8
future event or events or the existence of some future circumstance or
circumstances, and including the lien, privilege, security interest or other
encumbrance arising from a mortgage, deed of trust, hypothecation, cession,
transfer, assignment, pledge, adverse claim or charge, conditional sale or trust
receipt, or from a lease, consignment or bailment for security purposes. "Lien"
----
shall also include reservations, exceptions, encroachments, easements,
rights-of-way, covenants, conditions, restrictions, leases and other title
exceptions and encumbrances affecting property. A Person shall be deemed to be
the owner of any property that such Person has acquired or shall hold subject to
a conditional sale agreement or other arrangement (including a leasing
arrangement) pursuant to which title to the property has been retained by or
vested in some other Person for security purposes.
"LLC" means each of ETrans, GTrans and Gen.
---
"LLC Accounts Receivable" has the meaning set forth in Section 2.01(j)
-----------------------
of the LLC Asset Transfer Agreement.
"LLC Asset Transfer Agreement" means an Asset Transfer Assignment and
----------------------------
Assumption Agreement, the form of which is attached to the Master Separation
Agreement as Exhibit (_), together with the Schedules, Appendices and Exhibits
thereto, entered into as of the Transfer Date by and between PG&E and LLC and
any Subsidiary of LLC.
"LLC Assets" has the meaning set forth in Section 2.01 of the LLC Asset
----------
Transfer Agreement.
"LLC Assigned Contracts" has the meaning set forth in Section 2.01(h)
----------------------
of the LLC Asset Transfer Agreement.
"LLC Assigned Leases" has the meaning set forth in Section 2.01(l) of
-------------------
the LLC Asset Transfer Agreement.
"LLC Assigned Licenses" has the meaning set forth in Section
---------------------
2.01(f)(viii) of the LLC Asset Transfer Agreement.
"LLC Business" has the meaning set forth in Section 2.01 of the LLC
------------
Asset Transfer Agreement.
"LLC Claim" has the meaning set forth in Section 9.01(_) of the Master
---------
Separation Agreement.
"LLC Delayed Transfer Asset" means any Asset that is expressly provided
--------------------------
in the LLC Asset Transfer Agreement, the Master Separation Agreement or any
other Ancillary Agreement to be transferred to LLC after the Transfer Date.
"LLC Delayed Transfer Liability" means any Liability that is expressly
------------------------------
provided in the LLC Asset Transfer Agreement, the Master Separation Agreement or
any other Ancillary Agreement to be assumed by LLC after the Transfer Date.
A-9
"LLC Easements" has the meaning set forth in Section 2.01(c)(iii) of
-------------
the LLC Asset Transfer Agreement.
"LLC Employee" has the meaning set forth in Section 2.04(h) of the LLC
-------------
Asset Transfer Agreement.
"LLC Excluded Liabilities" has the meaning set forth in Section 2.05 of
------------------------
the LLC Asset Transfer Agreement.
"LLC Exclusive Contingent Gain" means any Contingent Gain if such
-----------------------------
Contingent Gain exclusively relates to the LLC Business, or if such Contingent
Gain is expressly assigned to LLC or any member of the LLC Group pursuant to the
Master Separation Agreement or any Ancillary Agreement.
"LLC Exclusive Contingent Liability" means any Contingent Liability, if
----------------------------------
such Contingent Liability primarily relates to the LLC Business, or if such
Contingent Liability is expressly assigned to LLC or any member of the LLC Group
pursuant to the Master Separation Agreement or any Ancillary Agreement.
"LLC Governmental Entitlements" means, collectively, those Governmental
-----------------------------
Entitlements related to the LLC Business or the LLC Assets as more specifically
set forth in Schedule 2.01(g) to the LLC Asset Transfer Agreement.
"LLC Group" means LLC and the Subsidiaries of LLC after giving effect
---------
to the Separation and Spin-Off.
"LLC Intellectual Property" has the meaning set forth in Section
-------------------------
2.01(f) of the LLC Asset Transfer Agreement.
"LLC Land" has the meaning set forth in Section 2.01(c)(i) of the LLC
--------
Asset Transfer Agreement.
"LLC Liabilities" has the meaning set forth in Section 2.04 of the LLC
---------------
Asset Transfer Agreement.
"LLC Notes Receivable" has the meaning set forth in Section 2.01(i) of
--------------------
the LLC Asset Transfer Agreement.
"LLC Operational Facilities" has the meaning set forth in Section
--------------------------
2.01(a) of the LLC Asset Transfer Agreement.
"LLC Personal Property Leases" has the meaning set forth in Section
----------------------------
2.01(e)(i) of the LLC Asset Transfer Agreement.
"LLC Real Property Interests" has the meaning set forth in Section
---------------------------
2.01(c)(v) of the LLC Asset Transfer Agreement.
A-10
"LLC Real Property Leases" has the meaning set forth in Section
------------------------
2.01(c)(ii) of the LLC Asset Transfer Agreement.
"LLC Securities" has the meaning set forth in Section 2.01(d) of the
--------------
LLC Asset Transfer Agreement.
"LLC Subsidiaries" means the limited liability companies listed on
----------------
Schedule 1.0 to the LLC Asset Transfer Agreement.
"LLC Third Party Claim" has the meaning set forth in Section 8.9(_) of
---------------------
the Master Separation Agreement.
"Master Separation Agreement" means the Master Separation and
---------------------------
Distribution Agreement among Parent, PG&E, Holdings, Newco, ETrans, GTrans and
Gen, as the same may be amended from time to time.
"Newco" means Newco Energy Corporation, a California corporation and
-----
initially a wholly owned subsidiary of PG&E.
"Operating Agreements" means, collectively, the agreements executed
--------------------
between or among members of the Parent Group, the PG&E Group, the ETrans Group,
the GTrans Group and the Gen Group as of the Transfer Date, the Effective Date
or the Spin-Off Date, as applicable, other than the Master Separation Agreement
and the Ancillary Agreements.
"Parent" means PG&E Corporation, a California corporation.
------
"Parent Group" means Parent and the Subsidiaries of Parent after giving
------
effect to the Separation and Spin-Off, including Newco but excluding therefrom
any Subsidiary of Parent that is a member of the ETrans Group, the GTrans Group
or the Gen Group.
"Party" has the meaning set forth in the recitals to the LLC Asset
-----
Transfer Agreement.
"PC Bond Agreements" means those certain PC Bond Agreements dated as of
------------------
the Effective Date between PG&E and Gen, as the same may be amended from time to
time.
"Pending Litigation Claims" has the meaning set forth in the Plan.
-------------------------
"Person" means any natural person, corporation, business trust, joint
------
venture, association, company, partnership, limited liability company or other
entity or any Governmental Authority.
"PG&E" means Pacific Gas and Electric Company, a California
----
corporation.
"PG&E Business" means the business to be owned and conducted by PG&E
-------------
after giving effect to the transfers of Assets, and of the ETrans Business, the
Gen Business and the GTrans Business as contemplated by the Master Separation
Agreement and the Ancillary Agreements.
"PG&E Common Stock" means the common stock, par value $5.00 per share,
-----------------
of PG&E.
A-11
"PG&E Group" means PG&E and the Subsidiaries of PG&E after giving
----------
effect to the Separation and Spin-Off.
"PG&E Reconveyance Land" has the meaning set forth in Section 2.02(c)
----------------------
of the LLC Asset Transfer Agreement.
"PG&E Retained [Type of] Assets" has the meaning set forth in Section
------------------------------
2.02(a) of the LLC Asset Transfer Agreement.
"Plan" means the Plan of Reorganization Under Chapter 11 of the
----
Bankruptcy Code for Pacific Gas and Electric Company, proposed by PG&E and
Parent, and dated April 19, 2002, including the Plan Supplement and all
exhibits, supplements, appendices and schedules thereto, either in the form
filed or as the same may be altered, amended or modified from time to time.
"Plan Supplement" has the meaning set forth in the Plan.
---------------
"Real Property Leases" means, collectively, (a) leases, lease
--------------------
amendments, exhibits, addendum and riders thereto, including any contracts,
operating leases, rental agreements or similar instruments creating a possessory
interest in the real property and (b) lease guaranties, side letter agreements,
improvement agreements, occupancy agreements, use agreements, operating leases,
rental agreements, work letter agreements, assignments and any other agreements
relating to the lease of real property.
"Records Access Agreement" means the Records Access Agreement among
------------------------
Parent, PG&E, ETrans, GTrans and Gen, as the same may be amended from time to
time.
"Release" means any spilling, leaking, pumping, pouring, emitting,
-------
discharging, injecting, escaping, leaching, dumping or disposing into the
environment of any Hazardous Material, including the abandonment or discarding
of containers and other receptacles containing any Hazardous Materials and any
passive migration of any Hazardous Material.
"Remediation" means any investigation, remediation, prevention,
-----------
containment or abatement of releases or threatened releases of materials into
the workplace or the environment and the assessment and mitigation of risks
and/or restoration of any harm arising therefrom and any related actions.
"Security Interest" means any mortgage, security interest, pledge,
-----------------
lien, charge, claim, option, right to acquire, voting or other restriction,
right-of-way, covenant, condition, easement, encroachment, restriction on
transfer, or other encumbrance of any nature whatsoever.
"Separation" means the separation effective as of the Effective Date of
----------
the existing businesses of PG&E pursuant to the terms of the Master Separation
Agreement and the Ancillary Agreements.
"Settlement and Stanislaus Commitments" has the meaning set forth in
-------------------------------------
the Plan.
"Shared Liabilities" means the Liabilities set forth in Schedule 8.01
------------------
to the Master Separation Agreement.
A-12
"Spin-Off" means the distribution by Parent of all of the shares of
--------
PG&E Common Stock owned directly by Parent.
"Spin-Off Date" means 11:59 p.m. on the date determined pursuant to
-------------
Article IV of the Master Separation Agreement on which the Spin-Off occurs.
"Subsidiary" means, with respect to any Person:
----------
(i) any corporation of which at least a majority in interest of the
outstanding voting stock (having by the terms thereof voting power under
ordinary circumstances to elect a majority of the directors of such corporation,
irrespective of whether or not at the time stock of any other class or classes
of such corporation shall have or might have voting power by reason of the
happening of a contingency) is at the time, directly or indirectly, owned or
controlled by such Person or by such Person and one or more of its Subsidiaries;
or
(ii) any non-corporate entity in which such Person or such Person and
one or more of its Subsidiaries either (A) directly or indirectly, at the date
of determination thereof, has at least majority ownership interest, or (B) at
the date of determination is a general partner or an entity performing similar
functions (e.g., manager of a limited liability company or a trustee of a
trust).
"Substances" means elements, materials, compounds, mixtures, chemicals,
----------
wastes or substances.
"Tax" or "Taxes" means any income, gross income, gross receipts,
--- -----
profits, capital stock, franchise, withholding, payroll, social security,
workers' compensation, unemployment, registration, disability, property, ad
valorem, stamp, excise, severance, occupation, service, sales, use, license,
lease, transfer, import, export, value added, alternative minimum, estimated, or
other similar tax (including any fee, assessment or other charge in the nature
of or in lieu of any tax) imposed by any Governmental Authority, and any
interest, penalties, additions to tax, or additional amounts in respect of the
foregoing.
"Tax Matters Agreement" means the agreement to be entered into between
---------------------
Parent and PG&E to allocate certain tax liabilities between Parent and PG&E and
to provide for certain other matters relating to taxes, as the same may be
amended from time to time.
"Third Party Claim" has the meaning set forth in Section 8.07(a) of the
-----------------
Master Separation Agreement.
"Tort Claims" has the meaning set forth in the Plan.
-----------
"Trademark and Service ▇▇▇▇ License Agreement" means the Trademark and
--------------------------------------------
Service ▇▇▇▇ License Agreement dated as of the Effective Date between Parent and
PG&E, as the same may be amended from time to time.
"Trademark Assignment" means the Trademark Assignment dated as of the
--------------------
Effective Date between Parent and PG&E.
"Transfer Date" means the date upon which the Asset Transfer Agreements
-------------
are executed.
A-13
"Workers' Compensation Claims" has the meaning set forth in the Plan.
----------------------------
A-14
