Common use of Retained Assets Clause in Contracts

Retained Assets. Notwithstanding any other provision of this Agreement, the transactions contemplated by this Agreement exclude each and every right, title, interest or other asset in any way relating to the matters described below to the extent in any way owned by, or that in any way accrued to the benefit of, any Acquired Company (other than those actually owned by the Javelina Partnerships) (including their respective successors) prior to the Closing Date (all of which are referred to as the “Retained Assets”): (i) Retained Electronic Data; (ii) the El Paso Marks; (iii) any refunds from taxing authorities attributable to any period before the Effective Time; (iv) all books, records, work papers, Tax Returns, etc., relating to Taxes; (v) all insurance policies or other agreements of insurance that relate to the assets or businesses of any of such Acquired Company, except with respect to any claims made prior to the Effective Time; and (vi) any files, records, contracts or other documents of the Seller or any of its Affiliates relating to any analysis of the Buyer’s bid or offer and any analysis of any other bids or offers with respect to any such Acquired Company or all or any part of such Acquired Company Assets, including those in competition with the Buyer’s bid or offer. Prior to the Closing Date, the Seller shall cause any such Acquired Company to transfer, for or without consideration, the Retained Assets to the Seller, any of its Affiliates or any designee. Notwithstanding anything to the contrary provided elsewhere in this Agreement, the term Acquired Company Assets does not include (and similar terms or phrases contained in the Transaction Agreements shall not include) the Retained Assets, and, accordingly, the Seller’s representations, warranties and covenants shall not apply to the Retained Assets. For the avoidance of doubt, but without limiting the generality of the foregoing, neither the Seller nor any of its Affiliates is assuming or otherwise becoming responsible for any Obligation pursuant to this Section 2(f); provided, however, that the Seller is providing the indemnification specified in Section 8(b)(ix)(B) relating to the Retained Assets.

Retained Assets. Notwithstanding any other provision of this Agreement, the transactions contemplated by this Agreement exclude each and every right, title, interest or other asset in any way relating to the matters described below to the extent in any way owned by, or that in any way accrued to the benefit of, any Acquired Company (other than those actually owned by the Javelina Partnerships) (including their respective successors) prior to the Closing Date (all of which are referred to as the “Retained Assets”): (i) Retained Electronic Data; (ii) the El Paso ▇▇▇▇ Marks; (iii) any refunds from taxing authorities attributable to any period before the Effective Time; (iv) all books, records, work papers, Tax Returns, etc., relating to Taxes; (v) all insurance policies or other agreements of insurance that relate to the assets or businesses of any of such Acquired Company, except with respect to any claims made prior to the Effective Time; and (vi) any files, records, contracts or other documents of the Seller or any of its Affiliates relating to any analysis of the Buyer’s bid or offer and any analysis of any other bids or offers with respect to any such Acquired Company or all or any part of such Acquired Company Assets, including those in competition with the Buyer’s bid or offer. Prior to the Closing Date, the Seller shall cause any such Acquired Company to transfer, for or without consideration, the Retained Assets to the Seller, any of its Affiliates or any designee. Notwithstanding anything to the contrary provided elsewhere in this Agreement, the term Acquired Company Assets does not include (and similar terms or phrases contained in the Transaction Agreements shall not include) the Retained Assets, and, accordingly, the Seller’s representations, warranties and covenants shall not apply to the Retained Assets. For the avoidance of doubt, but without limiting the generality of the foregoing, neither the Seller nor any of its Affiliates is assuming or otherwise becoming responsible for any Obligation pursuant to this Section 2(f); provided, however, that the Seller is providing the indemnification specified in Section 8(b)(ix)(B8(b)(vii)(B) relating to the Retained Assets.

Retained Assets. Notwithstanding any other provision of this Agreementanything, the transactions contemplated by this Agreement exclude each and every rightexpress or implied, title, interest or other asset in any way relating to the matters described below contrary contained herein, Purchaser expressly understands and agrees that Seller shall not sell to the extent in any way owned byPurchaser, or that in any way accrued to the benefit ofand Purchaser shall not purchase, any of the assets, properties or rights of Seller and its Affiliates that are not Acquired Company Assets, including the following (other than those actually owned by the Javelina Partnerships) (including their respective successors) prior to the Closing Date (all of which are referred to as collectively, the “Retained Assets”): (ia) Retained Electronic DataUse of any trade names and trademarks and domains that are not listed on Schedule 2.2(e); (iib) the El Paso MarksAll Intellectual Property that is not Acquired Intellectual Property and all uses thereof; (iiic) All finished goods inventory that is not the Finished Inventory, all isoprene rubber inventory that is not IR Inventory, all raw materials inventory that is not Raw Materials, and all work in process inventory that is not WIP Inventory; (d) All of Seller’s and its Affiliate’s Contracts that are not Acquired Contracts, including all of Seller’s or its Affiliate’s contracts, agreements, arrangements or commitments that are partially (but not primarily) related to the Cariflex Business, including those contracts listed on Schedule 2.3(d); (e) All rights of Seller and its Affiliates under this Agreement and any refunds from taxing authorities attributable other Transaction Agreement, and any records, data, information or communications produced by or for Seller or its Affiliates or their Representatives in connection with the potential transfer of the Acquired Assets to any period Person, including analyses relating to the Acquired Assets, records of discussions regarding the sale of the Acquired Assets and any confidential or privileged information regarding the Transaction, and all records, data, information, or communications that are not an Acquired Asset; (f) All Tax Returns and other Tax records, reports, data, files and documents related to Seller or its Affiliates (other than a Tax Return or other Tax record, report, data, file or document solely related to an Acquired Entity); (g) All rights to refunds, rebates, credits, abatements or similar benefits relating to Taxes and other governmental charges of whatever nature arising out of Seller’s operation of the Cariflex Business or ownership of the Acquired Assets, in each case, for any Pre-Closing Period; (h) All assets held under or in connection with any Company Employee Benefit Plan that is not an Assumed Benefit Plan; (i) All Polymerization Technology, subject to the Polymerization License Agreement; (j) The real property parcels located within the Facility and all improvements, equipment and other physical assets located thereon, as described on Schedule 2.3(j); (k) All claims, causes of action and demands of any nature arising out of or related to the Proceedings arising out of or related to the activities and operations of the Cariflex Business or Kraton Polymers do Brasil Indústria e Comércio de Produtos Petroquímicos Ltda. before the Effective TimeTime (the “Retained Litigation”); (ivl) all booksAll information technology systems, recordshardware, work paperssoftware, Tax Returnslicenses, etc.routers and other appurtenances, relating to Taxes; (v) all insurance policies or other agreements of insurance software and hardware that relate to is used in connection with Seller’s and its Affiliate’s enterprise-wide systems and the assets or businesses of any of enterprise-side systems such Acquired Companyas SAP, except SuccessFactors, Office 365, Dynamics 365, and Concur; provided that, with respect to any claims made prior hardware referred to in this provision, only to the Effective Timeextent not primarily used, primarily held for use or intended to be used primarily for the Cariflex Business; and (vim) any files, records, contracts or other documents of the Seller or any of its Affiliates relating to any analysis of the Buyer’s bid or offer and any analysis of any other bids or offers with respect to any such Acquired Company or all or any part of such Acquired Company Assets, including those in competition with the Buyer’s bid or offer. Prior to the Closing Date, the Seller shall cause any such Acquired Company to transfer, for or without consideration, the The Retained Assets to the Seller, any of its Affiliates or any designee. Notwithstanding anything to the contrary provided elsewhere in this Agreement, the term Acquired Company Assets does not include (and similar terms or phrases contained in the Transaction Agreements shall not include) the Retained Assets, and, accordingly, the Seller’s representations, warranties and covenants shall not apply to the Retained Assets. For the avoidance of doubt, but without limiting the generality of the foregoing, neither the Seller nor any of its Affiliates is assuming or otherwise becoming responsible for any Obligation pursuant to this Section 2(fdescribed on Schedule 2.3(m); provided, however, that the Seller is providing the indemnification specified in Section 8(b)(ix)(B) relating to the Retained Assets.

Retained Assets. Notwithstanding any other provision of this AgreementThe Parties acknowledge and agree that, except as specifically listed in Section 1.01(a), the transactions contemplated by this Agreement exclude each and every right, title, interest or other asset in Acquired Assets shall not include any way relating to assets of the matters described below to Company that are not necessary for the extent in any way owned by, or that in any way accrued to conduct of the benefit of, any Acquired Company Business as it has been conducted during the twelve (other than those actually owned by the Javelina Partnerships12) (including their respective successors) months prior to the Closing Date date of this Agreement and is currently being conducted by the Company, including without limitation, the following (all of which are referred to as the “"Retained Assets”"): (i) Retained Electronic Dataany cash and cash equivalents, accounts and notes receivable and securities (excluding capital stock of Affiliates) of Company or any of its Affiliates (including all intercompany and intracompany receivables other than the intercompany accounts receivable relating to Company's Subsidiaries in Japan and Europe), all bank account balances and all petty cash) and security deposits or advances deposited or pa▇▇ ▇▇ or on behalf of Company as lessee, sublessee or guarantor or pursuant to any Real Property Leases; (ii) any amounts payable to or claims or causes of action of Company or any of its Affiliates in respect of Taxes, including duty drawbacks, Tax credits and Taxes refundable to Company or any of its Affiliates in respect of transactions prior to the El Paso MarksEffective Time or in respect of the period or portion thereof ending on or prior to the Effective Time; (iii) any refunds from taxing authorities attributable due from, or payments due on, claims with the insurers of Company or any of its Affiliates in respect of losses arising prior to any period before the Effective Time; (iv) all books, recordsdocuments, work papers, Tax Returns, etc., records and files prepared in connection with or relating to Taxesthe transactions contemplated by this Agreement, including bids received from other parties and analyses relating to the Business; (v) all insurance policies such portion of the Business Information that Company or other agreements its Affiliates are, in the reasonable opinion of insurance Company's counsel, required by Law or by agreement with a third party to retain, provided that relate to the assets or businesses of any Purchaser shall be provided copies of such Acquired Company, except material unless contrary to Law or agreement with respect to any claims made prior to the Effective Time; anda third party; (vi) any files, records, contracts or other documents asset of the Seller Company or any of the its Affiliates relating to any analysis that would constitute an Acquired Asset if it were owned by Company on the Closing Date that is conveyed or otherwise disposed of during the period from the date hereof until the Closing Date (x) in the ordinary course of business and not in violation of the Buyer’s bid or offer and any analysis terms of any other bids or offers with respect to any such Acquired Company or all or any part of such Acquired Company Assets, including those in competition with the Buyer’s bid or offer. Prior to the Closing Date, the Seller shall cause any such Acquired Company to transfer, for or without consideration, the Retained Assets to the Seller, any of its Affiliates or any designee. Notwithstanding anything to the contrary provided elsewhere in this Agreement, (y) as otherwise expressly permitted by the term Acquired Company Assets does not include terms of this Agreement or (and similar terms or phrases contained in z) with the Transaction Agreements shall not includewritten consent of Purchaser; (vii) the Company Benefit Plans; (viii) those items listed on Schedule 1.01(b)(i) (Retained Diagnostic Development Assets), and, accordingly, the Seller’s representations, warranties 1.01(b)(ii) (Retained Drug Repositioning Asset) and covenants shall not apply to the 1.01(b)(iii) (Retained Corporate Assets. For the avoidance of doubt, but without limiting the generality of the foregoing, neither the Seller nor any of its Affiliates is assuming or otherwise becoming responsible for any Obligation pursuant to this Section 2(f); provided, however, and (ix) any asset of Company that is used primarily in connection with the Seller is providing Drug Repositioning Business or the indemnification specified in Section 8(b)(ix)(B) relating to the Retained AssetsDiagnostic Development Business.

Retained Assets. Notwithstanding any other provision of this AgreementSection 2.01, the transactions contemplated by this Agreement exclude each and every all right, title, title and interest or other asset in any way relating to the matters described below to the extent in any way owned by, or that in any way accrued to the benefit of, any Acquired Company (other than those actually owned by the Javelina Partnerships) (including of Sellers and their respective successors) prior Affiliates in the following properties, assets and rights shall be excluded from the Acquired Assets and not sold or assigned to the Closing Date Buyer (all of which are referred to as collectively, the “Retained Assets”): (i) Retained Electronic DataAll cash and cash equivalents of the Transferred Business; (ii) All non-assignable or non-transferable Permits of the El Paso MarksTransferred Business (to the extent the parties are unable to obtain the required consent to the assignment of any such Permit); (iii) any refunds from taxing authorities attributable to any period before All claims by Sellers under this Agreement, the Effective TimeEscrow Agreement or the Transition Services Agreement; (iv) all books, records, work papers, Tax Returns, etc., relating to TaxesAll assets or rights of Sellers not primarily used in the Transferred Business; (v) The following marks and names: U.S. Industries Inc., USI or any derivative thereof; (vi) To the extent attributable to any time or period ending on or prior to the Closing Date and to the extent not an asset included in the calculation of Final Net Worth, the right to receive any workers’ compensation rebate, surplus or credit (excluding any rebates, surpluses or credits relating to worker’s compensation claims that are Assumed Liabilities pursuant to this Agreement), and any refund of Tax in respect of the Transferred Business, including, without limitation, income tax, provincial sales tax and goods and services tax; (vii) All books, records, files and papers, whether in hard copy or computer format, (A) prepared in connection with this Agreement or the transactions contemplated hereby or (B) primarily relating to Retained Liabilities and all minute books and corporate records of Sellers other than those primarily used in the Transferred Business; (viii) To the extent primarily relating to or primarily arising out of a Retained Liability or Retained Asset, all rights, privileges, claims, demands, refunds and indemnification agreements in favor of any Seller with, and indemnification and similar rights against, third parties, manufacturer’s warranties and all claims under such warranties, offsets and other claims, including claims for insurance payments; (ix) Subject to Section 7.12, all insurance policies maintained by any Seller or other agreements USI that insure the Transferred Business or any of insurance that relate its property, plant, equipment, officers, directors, employees or agents against any Liability, loss, damage or loss profits for any reason or purpose (the “Business Insurance Policies”) and all recoveries or rights to the assets or businesses same; (x) The capital stock of any all Subsidiaries of such Acquired Company, except with respect to any claims made prior Sellers (other than SuperVent and Industrias); (xi) All rights under the Lease relating to the Effective TimeDallas Property; (xii) All assets and contracts the benefits of which the Transition Services Agreement expressly or by implication envisages will be made available by Sellers or their respective Affiliates to Buyer and its Affiliates following the Closing Date; and (vixiii) All products and intellectual property of any fileskind presently or at any time in the past owned (in whole or in part) by the Companies, recordsany of their respective Affiliates, contracts or other documents of the Seller or any of its Affiliates relating their respective predecessor or successor corporations, related in any way to any analysis the manufacture, sale, or specification of the Buyer’s bid or offer and any analysis of any other bids or offers with respect to any such Acquired Company or all asbestos or any part of such Acquired Company Assets, including those in competition with the Buyer’s bid or offer. Prior to the Closing Date, the Seller shall cause any such Acquired Company to transfer, for or without consideration, the Retained Assets to the Seller, any of its Affiliates or any designee. Notwithstanding anything to the contrary provided elsewhere in this Agreement, the term Acquired Company Assets does not include asbestos-containing product (and similar terms or phrases contained in the Transaction Agreements shall not include) the Retained Assets, and, accordingly, the Seller’s representations, warranties and covenants shall not apply to the Retained Assets. For the avoidance of doubt, but without limiting the generality of the foregoing, neither the Seller nor any of its Affiliates is assuming or otherwise becoming responsible for any Obligation pursuant to this Section 2(f“ACP”); provided, however, that the Seller is providing the indemnification specified in Section 8(b)(ix)(B) relating to the Retained Assets.

Retained Assets. Notwithstanding any other provision of this Agreementanything contained herein to the contrary, the transactions contemplated by this Agreement exclude each and every rightSeller shall not sell, titleassign, interest transfer, convey or other asset in any way relating deliver, or cause to be sold, assigned, transferred, conveyed or delivered, to the matters described below to Buyer, and the extent in Buyer shall not purchase from the Seller any way owned byof the following assets, or that in any way accrued to properties, interests and rights of the benefit of, any Acquired Company Seller (other than those actually owned by the Javelina Partnerships) (including their respective successors) prior to the Closing Date (all of which are referred to as the “"Retained Assets”"): (i) all Tax Returns, company charters, minute books, stock records and corporate seals and all other books and records of the Seller, to the extent such books and records relate exclusively to the Retained Electronic DataAssets or the Retained Liabilities; (ii) all cash and cash equivalents, such as bank deposits, certificates of deposits and marketable securities, including any cash used as collateral for letters of credit or performance bonds of the El Paso MarksSeller; (iii) all claims for any refunds from taxing authorities (or rights thereto) relating to Taxes and other governmental charges of any nature attributable to or imposed upon the Seller or any period before of its Subsidiaries or the Effective Timeconduct of the Business on or prior to the Closing Date, other than the claims for refunds set forth in Section 1.1(a)(vii); (iv) all booksshares of stock or any other ownership interest in any corporation, recordspartnership, work papers, Tax Returns, etc., relating to Taxestrust or other entity held by the Seller; (v) all contracts set forth in Section 1.1(b)(v) of the Seller Disclosure Schedule; (vi) all insurance policies or benefits (other agreements of insurance that relate than those relating to the assets Health Plan Policies); (vii) all claims and causes of action of the Seller against other Persons (regardless of whether or businesses not such claims and causes of any action have been asserted, are ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or noncontingent), and all rights of indemnity, rights of contribution, rights to refunds, rights of reimbursement and other rights of recovery possessed by the Seller (regardless of whether such Acquired Company, except with respect to any claims made prior rights are currently exercisable) arising from or relating to the Effective TimeRetained Liabilities, excluding those arising from, but only to the extent relating to, the Acquired Assets; (viii) deposits of the Seller with, and refunds from, the Internal Revenue Service, including tax deposits, prepayments and estimated payments; deposits made pursuant to, and refunds under, Section 7519 of the Internal Revenue Code of 1986, as amended (the "Code") and all rights to such deposits and refunds and all interest on such deposits and refunds; (ix) Contracts and Permits, in each case which are not legally transferable, each of which is set forth in Section 1.1(b)(ix) of the Seller Disclosure Schedule; (x) the Non-Competition Agreement, dated February 3, 2000, between the Seller and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇; (xi) all Employee Plans (other than the Health Plan Policies); and (vixii) any files, records, contracts or other documents all rights of the Seller or any of its Affiliates relating under this Agreement and the Ancillary Agreements to any analysis of the Buyer’s bid or offer and any analysis of any other bids or offers with respect to any such Acquired Company or all or any part of such Acquired Company Assets, including those in competition with the Buyer’s bid or offer. Prior to the Closing Date, the Seller shall cause any such Acquired Company to transfer, for or without consideration, the Retained Assets to the Seller, any of its Affiliates or any designee. Notwithstanding anything to the contrary provided elsewhere in this Agreement, the term Acquired Company Assets does not include (and similar terms or phrases contained in the Transaction Agreements shall not include) the Retained Assets, and, accordingly, the Seller’s representations, warranties and covenants shall not apply to the Retained Assets. For the avoidance of doubt, but without limiting the generality of the foregoing, neither the Seller nor any of its Affiliates which it is assuming or otherwise becoming responsible for any Obligation pursuant to this Section 2(f); provided, however, that the Seller is providing the indemnification specified in Section 8(b)(ix)(B) relating to the Retained Assetsa party.

Retained Assets. (a) Notwithstanding any other provision anything to the contrary contained herein, Seller and its Affiliates shall retain, and shall not be obligated to sell, transfer, assign or deliver to Buyer, their respective rights, titles or interests in or to the Retained Assets. (b) For purposes of this Agreement, the transactions contemplated by this Agreement exclude each and every right, title, interest or other asset in any way relating notwithstanding anything to the matters described below to the extent in any way owned bycontrary contained herein, or that in any way accrued to the benefit of, any Acquired Company (other than those actually owned by the Javelina Partnerships) (including their respective successors) prior to the Closing Date (all of which are referred to as the “Retained Assets”):” mean the following: (i) Retained Electronic Dataall assets and properties to the extent not dedicated or related to the Consumer Care Business (other than, for the avoidance of doubt, to the extent rights are granted in or to those assets or properties pursuant to the Ancillary Agreements); (ii) the El Paso MarksRetained Sites and, except to the extent constituting Transferred Inventory, all assets located at the Retained Sites (other than assets owned by the Companies or any of their Subsidiaries); (iii) any refunds from taxing authorities attributable (A) all accounts receivable (other than (x) those accounts receivable that are payable to any period before a Company or a Subsidiary thereof, which shall be included in the Effective Timecalculation of Closing Date Net Working Capital, and (y) the Canadian Accounts Receivable) and (B) all credits, prepaid expenses, deferred charges, advance payments actually made, security deposits, prepaid items and duties (other than those of a Company or a Subsidiary thereof, which shall be included in the calculation of Closing Date Net Working Capital), in each case, even if related to the Consumer Care Business; (iv) all books, records, work papers, Tax Returns, etc., relating to TaxesRetained Marks; (v) all insurance policies or unused form invoices, shipping documents, purchase orders and other agreements of insurance preprinted business forms that relate to the assets or businesses of have any of such Acquired Company, except with respect to any claims made prior to the Effective Time; andRetained Mark thereon; (vi) any filesall permits, records, contracts licenses and other governmental authorizations used in connection with the ownership or other documents operation of the Retained Sites; (vii) except to the extent set forth in Section 2.3(a)(x), all Tax data and records of the Transferred Business relevant to Pre-Closing Tax Periods; (viii) all minute books, stock records and, charter documents, corporate seals and other books, records or documents relating to the Seller Group, records or materials relating to any internal investigation conducted by, or on behalf of, Seller or any of its Affiliates to the extent not relating primarily to the Companies, any of their Subsidiaries, the Consumer Care Assets or the Consumer Care Business, and any other records or materials relating to any analysis of the Buyer’s bid Seller or offer and any analysis of any other bids or offers with respect to any such Acquired Company or all or any part of such Acquired Company Assets, including those in competition with the Buyer’s bid or offer. Prior to the Closing Date, the Seller shall cause any such Acquired Company to transfer, for or without consideration, the Retained Assets to the Seller, any of its Affiliates generally and not relating primarily to the Companies, any of their Subsidiaries, the Consumer Care Assets or the Consumer Care Business (other than the Rx Regulatory Documentation); (ix) all consideration received by, and all rights of, Seller pursuant to this Agreement or any designee. Notwithstanding Ancillary Document; (x) all cash and cash equivalents (including marketable securities and short term investments) and deposits held by the Seller Group related to the Consumer Care Business; (xi) subject to Section 10.2(e), all insurance benefits, including rights and proceeds, arising from or primarily relating to the Transferred Assets and accrued prior to the Closing; (xii) all assets that relate to any Plan (or portion thereof) covering Business Employees employed in the United States or that is not required to be transferred, assigned or delivered to Buyer or its Affiliates under applicable Law; (xiii) all assets or properties, including Intellectual Property, in Embargoed Countries; (xiv) all rights under Contracts, all equipment, supplies and other fixed assets, all permits, licenses, other governmental authorizations, and any other assets in each case to the extent necessary for Seller or its Affiliates to perform their obligations under the Transition Services Agreement, or the Seller to Buyer Master Product Supply Agreement; (xv) all documents, files, records, data, studies, reports, information and any other assets relating to the switch of the status of any pharmaceutical product that contains montelukast sodium, rizatriptan benzoate or mometasone furoate (excluding any nasally inhaled pharmaceutical product containing mometasone furoate monohydrate (Nasonex) in the markets set forth in Annex A) as an active pharmaceutical ingredient to a pharmaceutical product for which a prescription from a health care professional is not needed in order for a consumer to buy or use such pharmaceutical product (“OTC”), including any Drug Approval Applications for an OTC version of a pharmaceutical product that contains montelukast sodium, rizatriptan benzoate or mometasone furoate (excluding any nasally inhaled pharmaceutical product containing mometasone furoate monohydrate (Nasonex) in the markets set forth in Annex A) as an active pharmaceutical ingredient; and (xvi) any assets or properties set forth in Section 2.5(b) of the Seller Disclosure Schedule. (c) For purposes of this Agreement, and notwithstanding anything to the contrary provided elsewhere contained herein, “Retained Assets” includes all assets, property, rights and interests of Seller and its Affiliates with respect to the Rx Product Business other than the Transferred Rx Product Assets. (d) Notwithstanding anything in this Agreement, the term Acquired Company Assets does not include (and similar terms or phrases contained in the Transaction Agreements shall not include) the Retained Assets, and, accordingly, the Seller’s representations, warranties and covenants shall not apply Agreement to the Retained Assets. For contrary, on or prior to the avoidance of doubtClosing, but without limiting Seller shall, if it deems necessary or appropriate, cause the generality of the foregoingCompanies and their Subsidiaries to convey, neither the transfer, assign and deliver to Seller nor or any of its Affiliates is assuming Affiliates, any right, title and interest of any of the Company and its Subsidiaries in and to those assets, rights and properties, which, if held by any Company or otherwise becoming responsible any Subsidiary of any Company, would constitute a Retained Asset, for any Obligation pursuant to this Section 2(f); provided, however, that the Seller is providing the indemnification specified in Section 8(b)(ix)(Bsuch consideration (or no consideration) relating to the Retained Assetsas shall be determined by Seller.

Retained Assets. Notwithstanding any other provision The following properties, assets, rights and interests of the Sellers (the "Retained Assets") are expressly excluded from the purchase and sale contemplated hereby and, as such, are not included in the Assets: (a) the Sellers' rights under this Agreement; (b) all cash and cash equivalents other than Excess Cash (and not including Accounts Receivable) and marketable securities of the Sellers and their Affiliates, including, without limitation, any cash deposited as, or to secure, bonds posted by any one or more of the Sellers with respect to any Retained Litigation and tax liabilities of the Sellers, which cash the Sellers agree to deposit into the Closing Account (as defined in Section 1.2(k) below) immediately prior to the Closing; (c) the shares of capital stock of any of the direct or indirect subsidiaries of any one or more of the Sellers; (d) any and all tax attributes of any one or more of the Sellers, including, without limitation, any net operating loss carryforwards and tax refunds; (e) any and all of the rights of any one or more of the Sellers under, with respect to or related to all claims, causes of action, choses in action and rights of recovery (collectively, "Claims") any one or more of the Sellers has, or may have, against: (i) KPMG Peat Marwick LLP ("KPMG") or any of its Affiliates; (ii) Genesis Insurance Company, Federal Insurance Company or any of their respective Affiliates (collectively, the transactions contemplated by this Agreement exclude each and every right, title, interest "Insurance Companies"); or (iii) any one or more parties (but only insofar as those Claims against any one or more of such other asset in any way relating parties relate to the matters described below subject matter of the Claims against any one or more of KPMG and the Insurance Companies referred to above or any of the Retained Claims (as hereinafter defined)) whether or not currently pending; (f) all rights of set off or recoupment held by any one or more of the Sellers against any creditor whose claims are not included in the Assumed Liabilities (as hereinafter defined), in each case, to the extent in related to those claims; (g) all avoiding power causes of action arising under Chapter 5 of Title 11 of the United States Code (the "Bankruptcy Code"); (h) any way owned by, or that in any way accrued to the benefit of, any Acquired Company (other than those actually owned by the Javelina Partnerships) (including their respective successors) prior to the Closing Date (and all of which are referred the rights of any one or more of the Sellers under, with respect to as or related to any of the “agreements (collectively, the "Retained Assets”):Agreements") between any one or more of the Sellers and: (i) ▇▇▇▇▇▇▇ & Marsal, Inc.; (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP; and (iii) ▇▇▇▇▇▇ Brothers, Inc.; (i) Retained Electronic Data; (ii) the El Paso Marks; (iii) any refunds from taxing authorities attributable right, if any, of PCN to any period before the Effective Time; (iv) all books, records, work papers, Tax Returns, etc., relating to Taxes; (v) all insurance policies or other agreements of insurance that relate to the assets or businesses of any of such Acquired Company, except with respect to any claims made prior to the Effective Time; and (vi) any files, records, contracts or other documents receive payment of the Seller or any of its Affiliates relating "Second Cash Payment" from Medical Manager Northwest, Inc. ("MMN") pursuant to any analysis Article 2 of the Buyer’s bid or offer Asset Purchase Agreement dated as of July 2, 1999, among PCN, WM, Medical Manager and any analysis of any other bids or offers with respect to any such Acquired Company or all or any part of such Acquired Company Assets, including those in competition with MMN (the Buyer’s bid or offer. Prior to the Closing Date, the Seller shall cause any such Acquired Company to transfer, for or without consideration, the Retained Assets to the Seller, any of its Affiliates or any designee. Notwithstanding anything to the contrary provided elsewhere in this "SmartPractice Agreement, the term Acquired Company Assets does not include (and similar terms or phrases contained in the Transaction Agreements shall not include) the Retained Assets, and, accordingly, the Seller’s representations, warranties and covenants shall not apply to the Retained Assets. For the avoidance of doubt, but without limiting the generality of the foregoing, neither the Seller nor any of its Affiliates is assuming or otherwise becoming responsible for any Obligation pursuant to this Section 2(f"); provided, however, that the Seller is providing the indemnification specified in Section 8(b)(ix)(B) relating to the Retained Assets.;

Retained Assets. Notwithstanding any other provision of this Agreement, the transactions contemplated by this Agreement exclude each and every right, title, interest or other asset in any way relating to the matters described below to the extent in any way owned by, or that in any way accrued to the benefit of, any Acquired Company (other than those actually owned by the Javelina Partnerships) (including their respective successors) prior to the Closing Date (all of which are referred to as the “Retained Assets”"RETAINED ASSETS"): (i) Retained Electronic Data; (ii) the El Paso Marks; (iii) any refunds from taxing authorities attributable to any period before the Effective Time; (iv) all books, records, work papers, Tax Returns, etc., relating to Taxes; (v) all insurance policies or other agreements of insurance that relate to the assets or businesses of any of such Acquired Company, except with respect to any claims made prior to the Effective Time; (vi) the Dauphin Excluded Assets; and (vivii) any files, records, contracts or other documents of the Seller or any of its Affiliates relating to any analysis of the Buyer’s 's bid or offer and any analysis of any other bids or offers with respect to any such Acquired Company or all or any part of such Acquired Company Assets, including those in competition with the Buyer’s 's bid or offer. Prior to the Closing Date, the Seller shall cause any such Acquired Company to transfer, for or without consideration, the Retained Assets to the Seller, any of its Affiliates or any designee. Notwithstanding anything to the contrary provided elsewhere in this Agreement, the term Acquired Company Assets does not include (and similar terms or phrases contained in the Transaction Agreements shall not include) the Retained Assets, and, accordingly, the Seller’s 's representations, warranties and covenants shall not apply to the Retained Assets. For the avoidance of doubt, but without limiting the generality of the foregoing, neither the Seller nor any of its Affiliates is assuming or otherwise becoming responsible for any Obligation pursuant to this Section 2(f); provided, however, that the Seller is providing the indemnification specified in Section 8(b)(ix)(B8(b)(ix)(D) relating to the Retained Assets.

Retained Assets. Notwithstanding any other provision of this AgreementAnything to the contrary in Section 2.1 notwithstanding, the transactions contemplated Assets shall exclude and Purchaser shall not purchase the following property and assets, as set forth in Schedule 2.2, used by this Agreement exclude each Seller in connection with the conduct of the Business (collectively, the "RETAINED ASSETS"): (a) all intellectual property rights, know how, service and every right, title, interest or other asset in any way chemical supply agreements relating to the matters described below copolymers licensed to Seller from CytRx pursuant to the extent in any way owned byLicense Agreement between Seller and CytRx dated September 1, or that in any way accrued to the benefit of1992, any Acquired Company (other than those actually owned by the Javelina Partnerships) (including their respective successors) prior to the Closing Date (all of which are referred to as the “Retained Assets”): (i) Retained Electronic Dataamended; (iib) any other assets, properties or rights of Seller used exclusively in the El Paso MarksExcluded Business; (iiic) any refunds from taxing authorities attributable to any period before all collateral pledged by Seller as security for the Effective TimeLetter of Credit; (ivd) all the corporate seals, certificates of incorporation, minute books, recordsstock books, work papers, Tax Returns, etc., relating tax returns or other records having to Taxesdo with the corporate organization of the Seller; (ve) all insurance policies or other agreements of insurance that relate real property owned by Seller, if any; (f) the rights which will accrue to the assets Seller under this Agreement; (g) the rights to Seller's claims for any federal, state or businesses of any of such Acquired Company, except with respect to any claims made prior to the Effective Timelocal tax refund; and (vih) any filesaffirmative defenses, records, contracts counterclaims or other documents rights of Seller which arise in connection with any of the Seller or any of its Affiliates relating to any analysis of the Buyer’s bid or offer and any analysis of any other bids or offers with respect to any such Acquired Company or all or any part of such Acquired Company Assets, including those in competition with the Buyer’s bid or offer. Prior Excluded Liabilities prior to the Closing Date, the or any other right of Seller shall cause relating to any such Acquired Company to transferaffirmative defenses, for counterclaims or without consideration, the Retained Assets to the Seller, any of its Affiliates or any designee. Notwithstanding anything to the contrary provided elsewhere in this Agreement, the term Acquired Company Assets does not include (and similar terms or phrases contained in the Transaction Agreements shall not include) the Retained Assets, and, accordingly, the Seller’s representations, warranties and covenants shall not apply to the Retained Assets. For the avoidance of doubt, but without limiting the generality of the foregoing, neither the Seller nor any of its Affiliates is assuming or otherwise becoming responsible for any Obligation pursuant to this Section 2(f)other rights; provided, however, that Seller may assert such affirmative defenses, counterclaims and other rights in connection with the Assigned Agreements, whether in the same or independent actions, only in response to a claim for relief asserted against Seller is providing the indemnification specified in Section 8(b)(ix)(B) relating or against Purchaser if Purchaser has rights related to the Retained Assetssuch claim that it may assert against Seller.

Retained Assets. Notwithstanding any other provision of this Agreement, the transactions contemplated by this Agreement exclude each and every right, title, interest or other asset in any way relating anything to the matters described below contrary, all other assets of the Sellers which are not Acquired Assets or Later Identified Assets are specifically excluded from the sale, transfer, conveyance, assignment and delivery to the extent in any way owned by, or that in any way accrued to the benefit of, any Acquired Company Buyer (other than those actually owned by the Javelina Partnerships) (including their respective successors) prior to the Closing Date (all of which are referred to as the “Retained Assets”): ). Notwithstanding any provision of Section 2(a) or Section 6(b) to the contrary, each of the following shall be deemed a Retained Asset and shall not be an Acquired Asset or Later Identified Asset: (i) Retained Electronic Data; all cash and cash equivalents of the Sellers, and all bank accounts of the Sellers, (ii) all employee benefit plans (including any assets thereof) and insurance policies of the El Paso Marks; Sellers, (iii) all permits, licenses, authorizations, approvals, consents and franchises of the Sellers issued by any refunds from taxing authorities attributable to any period before Governmental Entity, and all Contracts of the Effective Time; Sellers other than the Assigned Contracts, (iv) all booksrights of the Sellers under this Agreement or any other Transaction Agreement, records, work papers, Tax Returns, etc., relating to Taxes; (v) all insurance policies corporate seals, stock record books, corporate record books, and minute books (including minutes of meetings of directors and shareholders or other agreements committees thereof), (vi) all Records having to do with the organization or capitalization of insurance the Sellers, or that relate are in the nature of electronic mail, or that are not transferable to (or may not be provided to) the Buyer under applicable law, or to the extent relating to Retained Assets or Retained Liabilities, (vii) all issued or outstanding securities of the Sellers, and all rights of the Sellers against the holders thereof or under the agreements relating to the issuance thereof or with securityholders of the Sellers, (viii) all Tax Returns of the Sellers, all Tax assets or businesses of any the Sellers, and all Tax refunds of such Acquired Companythe Sellers, (ix) all laptop computers, cell phones and other tangible personal property of the Sellers, except for those set forth on Schedule 2(a)(iii), (x) the Libra Marks, and (xi) all present and future claims, warranties, causes of action, choses in action, and other rights with respect to any claims made prior to the Effective Time; and (vi) any files, records, contracts Retained Asset or other documents of the Seller or any of its Affiliates relating to any analysis of the Buyer’s bid or offer and any analysis of any other bids or offers with respect to any such Acquired Company or all or any part of such Acquired Company Assets, including those in competition with the Buyer’s bid or offer. Prior to the Closing Date, the Seller shall cause any such Acquired Company to transfer, for or without consideration, the Retained Assets to the Seller, any of its Affiliates or any designee. Notwithstanding anything to the contrary provided elsewhere in this Agreement, the term Acquired Company Assets does not include (and similar terms or phrases contained in the Transaction Agreements shall not include) the Retained Assets, and, accordingly, the Seller’s representations, warranties and covenants shall not apply to the Retained Assets. For the avoidance of doubt, but without limiting the generality of the foregoing, neither the Seller nor any of its Affiliates is assuming or otherwise becoming responsible for any Obligation pursuant to this Section 2(f); provided, however, that the Seller is providing the indemnification specified in Section 8(b)(ix)(B) relating to the Retained AssetsLiability.

Retained Assets. Notwithstanding any other provision of anything in this AgreementAgreement to the contrary, the transactions contemplated by this Agreement exclude each and every right, title, interest or other asset in any way relating to Acquired Assets shall not include the matters described below to the extent in any way owned by, or that in any way accrued to the benefit of, any Acquired Company (other than those actually owned by the Javelina Partnerships) (including their respective successors) prior to the Closing Date (all of Assets which are referred to as be retained by Seller and not sold or assigned to Purchaser (collectively, the “Retained Assets”):), which shall be limited to the following: (a) Cash and Cash Equivalents in the aggregate amount equal to (i) the amount required to fund the Wind-Down Budget, (ii) the amount required to fund any remaining amounts under the Transition Budget, (iii) the amount required to fund any remaining amounts of the Seller’s Professionals Carve-Out, and (iv) the amount required to fund any remaining amounts of the UCC Professionals Carve-out (if any); (b) all shares of capital stock or other equity interests in any Subsidiary, or securities convertible into or exchangeable or exerciseable for any such shares of capital stock or other equity interests, to the extent that any such shares of capital stock or other equity interest are excluded from the Acquired Assets; (c) all rights of Seller in and to all Contracts other than the Designated Contracts; (d) all deposits and all prepaid charges, Taxes and expenses of Seller solely related to any Retained Asset (including a non-Designated Contract) or Retained Liability, including, without limitation, (i) security deposits with third party suppliers, vendors, service providers or landlords, and lease and rental payments, (ii) rebates, (iii) tenant reimbursements, (iv) prepaid Taxes (including ad valorem Taxes, personal property Taxes and real estate Taxes), and (v) pre-payments, in each case of clauses (i) through (v), solely related to any Retained Asset (including a non-Designated Contract) or Retained Liability. (e) all losses, loss carryforwards and rights to receive refunds, and credits with respect to any and all Taxes of Seller (and/or of its Affiliates); (f) all Tax Returns of Seller; (g) all personnel files for Employees who are not Transferred Employees and personnel files of Transferred Employees that may not be Transferred under Applicable Laws; (h) books and records that Seller is required by Applicable Law to retain to the extent they relate exclusively to the Retained Assets or the Retained Liabilities; (i) customer relationships, goodwill and other intangible assets relating to, symbolized by or associated exclusively with the Retained Electronic DataAssets; (ii) the El Paso Marks; (iii) any refunds from taxing authorities attributable to any period before the Effective Time; (ivj) all books, records, work papers, Tax Returns, etc., relating to Taxes; (v) all insurance policies or other agreements of insurance claims that relate to the assets or businesses of Seller may have against any of such Acquired Company, except Person solely with respect to any claims made prior to other Retained Assets; (k) any of Seller’s director and officer insurance policies, fiduciary policies or employment practices policies (in each case of the Effective Timeforegoing, including any tail policies or coverage thereon), and any of Seller’s rights, claims, demands, proceedings, causes of action or rights of set off thereunder; (l) the Devens Excluded Assets and the Wafer Excluded Assets; and (vim) any files, records, contracts or other documents all right and claims of Seller arising under this Agreement and the Seller or any of its Affiliates relating to any analysis of the Buyer’s bid or offer and any analysis of any other bids or offers with respect to any such Acquired Company or all or any part of such Acquired Company Assets, including those in competition with the Buyer’s bid or offer. Prior to the Closing Date, the Seller shall cause any such Acquired Company to transfer, for or without consideration, the Retained Assets to the Seller, any of its Affiliates or any designee. Notwithstanding anything to the contrary provided elsewhere in this Agreement, the term Acquired Company Assets does not include (and similar terms or phrases contained in the Transaction Agreements shall not include) the Retained Assets, and, accordingly, the Seller’s representations, warranties and covenants shall not apply to the Retained Assets. For the avoidance of doubt, but without limiting the generality of the foregoing, neither the Seller nor any of its Affiliates is assuming or otherwise becoming responsible for any Obligation pursuant to this Section 2(f); provided, however, that the Seller is providing the indemnification specified in Section 8(b)(ix)(B) relating to the Retained AssetsAncillary Agreements.

Retained Assets. Notwithstanding any other provision of this Agreement, the transactions contemplated by this Agreement exclude each and every right, title, interest or other asset in any way relating to the matters described below to the extent in any way owned by, or that in any way accrued to the benefit of, any Acquired Company (other than those actually owned by the Javelina Partnerships) (including their respective successors) prior to the Closing Date (all of which are referred to as the “Retained Assets”): (i) Retained Electronic Data; (ii) the El Paso Marks; (iii) any refunds from taxing authorities attributable to any period before the Effective Time; (iv) all books, records, work papers, Tax Returns, etc., relating to Taxes; (v) all insurance policies or other agreements of insurance that relate to the assets or businesses of any of such Acquired Company, except with respect to any claims made prior to the Effective Time; and (vi) any files, records, contracts or other documents of the Seller or any of its Affiliates relating to any analysis of the Buyer’s bid or offer and any analysis of any other bids or offers with respect to any such Acquired Company or all or any part of such Acquired Company Assets, including those in competition with the Buyer’s bid or offer. Prior to the Closing Date, the Seller shall cause any such Acquired Company to transfer, for or without consideration, the Retained Assets to the Seller, any of its Affiliates or any designee. Notwithstanding anything to the contrary provided elsewhere --------------- contained in this Agreement, (a) it is the term Acquired intent of the parties hereto that, from and after the Closing, none of the Purchaser, any DMS Company Assets does not include or any DMS Subsidiary shall have any right, title or interest in, to or under any of the rights, properties or assets listed or described in Section 1.8 of the Disclosure Schedule (and similar terms or phrases contained collectively, the "Retained Assets"), other than such rights as are specifically provided for in the Transaction Agreements shall not includeLicense Agreement and the Marketing Services Agreement, (b) the Seller may cause any DMS Company or any DMS Subsidiary to assign, convey and deliver to the Seller or its designee prior to the Closing any right, title or interest in, to or under the Retained AssetsAssets that the applicable DMS Company or DMS Subsidiary may have, andother than such rights as are specifically provided for in the License Agreement and the Marketing Services Agreement, accordingly(c) the Purchaser shall, upon the Seller’s representations's reasonable request and at its expense, warranties cause the DMS Companies and covenants shall not apply the DMS Subsidiaries to assign, convey and deliver to the Seller or its designee at any time after the Closing any right, title or interest in, to or under the Retained AssetsAssets that any DMS Company or any DMS Subsidiary may have, other than such rights as are specifically provided for in the License Agreement and the Marketing Services Agreement, and (d) the Purchaser shall not, and from and after the Closing shall cause the DMS Companies and the DMS Subsidiaries not to, claim, use, exploit or otherwise treat the Retained Assets in any manner that is inconsistent with the intent expressed in this Section 1.8. For At the avoidance of doubtClosing, but without limiting the generality Seller shall ensure that there shall be no more than $100.00 in each of the foregoing, neither bank accounts listed on Section 1.8 of the Seller nor any of its Affiliates is assuming or otherwise becoming responsible for any Obligation pursuant to this Section 2(f); provided, however, that the Seller is providing the indemnification specified in Section 8(b)(ix)(B) relating to the Retained AssetsDisclosure Schedule.