Excluded Assets Buyer expressly understands and agrees that the following assets and properties of Seller and the Retained Subsidiaries (the “Excluded Assets”) shall be excluded from the Purchased Assets:
(a) all of Seller’s and the Retained Subsidiaries’ cash and cash equivalents on hand and in banks (except for such amounts, if any, as the parties may agree will be retained by the Purchased Subsidiaries and not constitute Purchased Subsidiary Pre-Closing Cash (the “Transferred Cash”));
(b) insurance policies relating to the Business and all claims, credits, causes of action or rights thereunder (except for Buyer’s rights under Section 5.05);
(c) all Intellectual Property Rights (other than the Business Intellectual Property Rights), including the marks and names set forth in Section 2.03 of the Disclosure Schedule (the “Seller Trademarks and Tradenames”), and including all royalties and/or other license payments under any Portfolio Cross-License;
(d) all books, records, files and papers, whether in hard copy or computer format, prepared in connection with this Agreement or the transactions contemplated hereby (other than confidentiality agreements with any Person relating to the Business, copies of which will be made available to Buyer at the Closing (it being understood that the portion of such copies not relating to the Business may be redacted)) and all minute books and corporate records of Seller and the Retained Subsidiaries;
(e) the property and assets described in Section 2.03 of the Disclosure Schedule;
(f) all rights of Seller or any of the Retained Subsidiaries arising under the Transaction Documents or the transactions contemplated thereby;
(g) all Purchased Assets sold or otherwise disposed of in the ordinary course of business during the period from the date hereof until the Closing Date in compliance with the terms hereof; and
(h) all of Seller’s and the Retained Subsidiaries’ claims for and rights to receive Tax refunds relating to the Business arising on or prior to the Closing Date.
Excluded Property Notwithstanding anything to the contrary in Section 2.1, the property, assets, rights and interests set forth in this Section 2.2 (the “Excluded Property”) are excluded from the Property:
Excluded Liabilities Other than as specifically listed in Section 2.03 above, Buyer shall not assume any Liability whatsoever of Sellers, whether or not arising from or related to the Business or the Purchased Assets (the “Excluded Liabilities”), and Sellers shall pay, perform and discharge, as and when due, each such Excluded Liability. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, and under no circumstances shall Buyer be deemed to assume any Liability arising out of or relating to:
(a) any actual or alleged tortious conduct, breach of Contract or violation of Applicable Law by any Seller or their employees or agents;
(b) any product sold or manufactured prior to the Closing Date;
(c) Taxes of any kind or character (other than property taxes attributable to the Purchased Assets, to the extent prorated hereunder);
(d) the ownership, operation, use or disposal of any Excluded Asset;
(e) any collective bargaining agreement, employee compensation or employee benefits including Liability for severance pay, overtime pay, bonus or incentive compensation, retirement plans (including any underfunding or withdrawal liability pursuant to the Multiemployer Pension Plan Amendment Act of 1980, arising from contributions made by the Sellers to the plans in question, as calculated through, and as of, any such withdrawal caused by the purchase of the Purchased Assets described herein, or otherwise triggered within thirty (30) days after the Closing Date, regardless of whether or not the amount of such Liability is known as of the time of such withdrawal) unemployment compensation, vacation, sick leave, termination pay or relating to any Employee Benefit Plan of any Seller or of any of their Affiliates;
(f) any Environmental Liability relating to or arising out of any condition or obligation existing on or prior to the Closing Date;
(g) any Debt of Sellers or any of their Affiliates;
(h) any Proceedings relating to Sellers or to the conduct or ownership of the Business or the Purchased Assets on or prior to the Closing Date, whether or not listed in Section 4.07(a) of the Disclosure Letter;
(i) any Liability arising out of any present or former business activity of Sellers other than the Business;
(j) any claims, choses in action, causes of action, rights of recovery, rights of set-off of any kind by any third party (including any employee or former employee of any Seller) arising out of the conduct of the Business, or the ownership, operation or use of any Purchased Assets on or prior to the Closing Date; or
(k) any Liability of Sellers under or arising by reason of this Agreement, or incurred in connection with the transactions contemplated by this Agreement, including any Sellers’ legal and accounting fees and expenses.
After Acquired Real Property Upon the acquisition by it or any of its Subsidiaries after the date hereof of any interest (whether fee or leasehold) in any real property (wherever located) (each such interest being a “New Facility”) with a Current Value (as defined below) in excess of $500,000 in the case of a fee interest immediately so notify the Collateral Agent, setting forth with specificity a description of the interest acquired, the location of the real property, any structures or improvements thereon and either an appraisal or such Loan Party’s good-faith estimate of the current value of such real property (for purposes of this Section, the “Current Value”). The Collateral Agent shall notify such Loan Party whether it intends to require a Mortgage (and any other Real Property Deliverables or landlord’s waiver (pursuant to Section 7.01(l) hereof) with respect to such New Facility. Upon receipt of such notice requesting a Mortgage (and any other Real Property Deliverables) or landlord’s waiver, the Person that has acquired such New Facility shall promptly furnish the same to the Collateral Agent. The Borrower shall pay all fees and expenses, including, without limitation, reasonable attorneys’ fees and expenses, and all title insurance charges and premiums, in connection with each Loan Party’s obligations under this Section 7.01(m).
Excluded Items The following items are excluded from this sale:
