Common use of Excluded Assets and Liabilities Clause in Contracts

Excluded Assets and Liabilities. (a) The Assets do not include, and Seller shall retain ownership of all right, title and interest in and to, any asset not identified as an Asset, including the following (the “Excluded Assets”): (i) all Excluded Loans; (ii) any property or asset which is not being transferred pursuant to Section 1.1, including (A) the existing name of Seller or any combination or derivation thereof, (B) all software of Seller, (C) any logos, service marks, trademarks, advertising material, slogans or similar items used on or prior to the Closing Date by Seller or Parent in connection with its business, (D) any refunds, credits or other assets or rights (including interest thereon or claims therefor) with respect to any Taxes paid by Seller, or for which Seller or any of its Affiliates are responsible under this Agreement, relating to the Assets or the Assumed Liabilities, (E) amounts recovered on any loans, loan participations or other extensions of credit that have been charged off prior to the Closing Date, (F) any real property owned, leased or licensed by Seller other than the Owned Real Properties, the Ground Leased Properties and the Leased Real Properties, (G) any insurance policies of Seller relating to any of the Branch Offices, Assets or Employees or (H) any assets arising out of or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by Seller, any of its Affiliates or any trade or business (whether or not incorporated) which, together with Seller or any of its Affiliates, would be treated as a single employer under Section 414 of the Internal Revenue Code of 1986, as amended (the “Code”), or Section 4001 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) (an “ERISA Affiliate”); and (iii) any Excluded Owned Real Property.

Excluded Assets and Liabilities. The list of Assets described in this Agreement as being purchased is exclusive and the Parties agree that all remaining assets of ESSI and/or Seller are not to be purchased pursuant to this Agreement and shall be Excluded Assets. It is further agreed that in acquiring the Assets, Buyer is not assuming or undertaking to assume and shall have no responsibility for any liabilities whether fixed or contingent, past, present or future, or direct or indirect, arising out of or in connection with the Assets, or any other acts or omissions of ESSI and/or Seller in connection therewith prior to the Closing (a) The Assets do not include, and Seller shall retain ownership of all right, title and interest in and to, any asset not identified collectively referred to as an Assetthe "Excluded Liabilities"), including the following (the “Excluded Assets”): without limitation, (i) all Excluded Loansany claim arising out of or in connection with the failure by ESSI or Seller to comply with any applicable government regulation; (ii) federal, state or local tax liabilities (including any property or asset which is not being transferred pursuant to Section 1.1depreciation, including investment tax credit recapture and rollback taxes); (A) the existing name of Seller or any combination or derivation thereof, (B) all software of Seller, (Ciii) any logos, service marks, trademarks, advertising material, slogans or similar items used on or prior to the Closing Date by Seller or Parent in connection with its business, (D) any refunds, credits or other assets or rights (including interest thereon or claims therefor) with respect to any Taxes paid by Seller, or for which Seller or any of its Affiliates are responsible under this Agreement, relating to the Assets or the Assumed Liabilities, (E) amounts recovered on any loans, loan participations or other extensions of credit that have been charged off prior to the Closing Date, (F) any real property owned, leased or licensed by Seller other than the Owned Real Properties, the Ground Leased Properties and the Leased Real Properties, (G) any insurance policies of Seller relating to any of the Branch Offices, Assets or Employees or (H) any assets claim arising out of or relating to employee benefits in connection with any Employee Plans of ESSI or employee benefit Seller or compensation plans, programs, agreements with the employment by ESSI or arrangements maintained or contributed to (or formerly maintained or contributed to) by Seller, Seller of any of its Affiliates employees or any trade past employees or business with the termination of any current employees; (whether iv) any claim resulting from defective products or not incorporatedworkmanship (including any recalls or returns with respect thereto) whichrelated to goods or services invoiced prior to Closing; (v) any claim arising from environmental liabilities, together with Seller or and (vi) any of its Affiliates, would be treated as a single employer claim under Section 414 any provision of the Internal Revenue New York Uniform Commercial Code of 1986or bulk sales law. LIMITATIONS ON WARRANTIES. EXCEPT FOR THOSE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, as amended (the “Code”)SELLER EXPRESSLY DISCLAIMS AND NEGATES AND BUYER HEREBY WAIVES, or Section 4001 of the Employee Retirement Income Security Act of 1974ALL OTHER REPRESENTATIONS AND WARRANTIES, as amended (“ERISA”) (an “ERISA Affiliate”); and (iii) any Excluded Owned Real PropertyEXPRESS, IMPLIED, STATUTORY OR OTHERWISE. AS EXAMPLES AND FOR THE AVOIDANCE OF DOUBT, BUT WITHOUT LIMITATION OF THE FOREGOING, THE ASSETS SHALL BE CONVEYED PURSUANT HERETO WITHOUT ANY WARRANTY OR REPRESENTATION WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE QUANTITY, PROFITABILITY, COLLECTIBILITY, QUALITY, CONDITION, SIZE, WEIGHT, SERVICEABILITY, CONFORMITY TO SAMPLES OR ANY OTHER ASPECT OF THE FIXTURES, EQUIPMENT OR OTHER PERSONAL PROPERTY INCLUDED AMONG THE ASSETS, ALL OF WHICH SHALL BE CONVEYED TO THE BUYER AS IS, WHERE IS, AND WITH ALL FAULTS AND DEFECTS AND IN THEIR PRESENT CONDITION AND STATE OF REPAIR AND WITHOUT ANY WARRANTIES WHATSOEVER OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE. THE BUYER ACKNOWLEDGES THAT THIS WAIVER IS CONSPICUOUS.

Excluded Assets and Liabilities. (a) The Assets do It is understood and agreed that Purchaser is not includeacquiring from Seller, and Seller shall retain ownership of all right, title and interest in and to, any asset not identified as an Asset, including the following (the “Excluded Assets”): (i) all Excluded Loans; Loans set forth in Section 1.2(a)(i) of the Seller Disclosure Letter and (ii) any property or asset which is not being transferred pursuant to Section 1.1, including (A) the existing name of Seller or any combination or derivation thereof, (B) all the software set forth in Section 1.2(a)(ii)(B) of Sellerthe Seller Disclosure Letter, (C) any logos, service marks, trademarks, advertising material, slogans or similar items used on or prior to the Closing Date by Seller or Parent in connection with its business, (D) any refunds, credits or other assets or rights (including interest thereon or claims therefor) with respect to any Taxes paid by Seller, or for which Seller or any of its Affiliates are responsible under this Agreement, relating to the Assets or the Assumed Liabilities, (E) loan, loan participations or other extensions of credit that have been classified as non-performing as of the Closing Date and any amounts recovered thereon, (F) amounts recovered on any loans, loan participations or other extensions of credit that have been charged off prior to the Closing Date, (FG) the mortgage loan origination business of Seller and any assets related primarily thereto, (H) any real property owned, leased or licensed by Seller other than the Owned Real Properties, the Ground Leased Properties and or the Leased Real PropertiesProperties (including any real property identified as other real estate owned (OREO) on Section 1.2(a)(ii) of the Seller Disclosure Letter), (GI) any Excluded Loans, (J) any insurance policies of Seller relating to any of the Branch Offices, Assets or Employees or (HK) any assets arising out of or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by Seller, any of its Affiliates or any trade or business (whether or not incorporated) which, together with Seller or any of its Affiliates, would be treated as a single employer under Section 414 of the Internal Revenue Code of 1986, as amended (the “Code”), or Section 4001 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) (an “ERISA Affiliate”); and , except as expressly set forth in Section 5.1 (iii) any collectively, the “Excluded Owned Real PropertyAssets”).

Excluded Assets and Liabilities. The list of Assets described in this Agreement as being purchased is pursuant to the descriptions herein and the attached Appendices and the Parties agree that all remaining assets of ESSI and/or Seller are not to be purchased pursuant to this Agreement and shall be Excluded Assets. It is further agreed that in acquiring the Assets, Buyer is not assuming or undertaking to assume and shall have no responsibility for any liabilities whether fixed or contingent, past, present or future, or direct or indirect, arising out of or in connection with the Assets, or any other acts or omissions of Seller or ESSI in connection therewith prior to the Closing (a) The Assets do not include, and Seller shall retain ownership of all right, title and interest in and to, any asset not identified collectively referred to as an Assetthe "Excluded Liabilities"), including the following (the “Excluded Assets”): without limitation, (i) all Excluded Loansany claim arising out of or in connection with the failure by Seller or ESSI to comply with any applicable government regulation; (ii) federal, state or local tax liabilities (including any property or asset which is not being transferred pursuant to Section 1.1depreciation, including investment tax credit recapture and rollback taxes); (A) the existing name of Seller or any combination or derivation thereof, (B) all software of Seller, (Ciii) any logos, service marks, trademarks, advertising material, slogans or similar items used on or prior to the Closing Date by Seller or Parent in connection with its business, (D) any refunds, credits or other assets or rights (including interest thereon or claims therefor) with respect to any Taxes paid by Seller, or for which Seller or any of its Affiliates are responsible under this Agreement, relating to the Assets or the Assumed Liabilities, (E) amounts recovered on any loans, loan participations or other extensions of credit that have been charged off prior to the Closing Date, (F) any real property owned, leased or licensed by Seller other than the Owned Real Properties, the Ground Leased Properties and the Leased Real Properties, (G) any insurance policies of Seller relating to any of the Branch Offices, Assets or Employees or (H) any assets claim arising out of or relating to employee benefits in connection with any Employee Plans of Seller or employee benefit ESSI or compensation plans, programs, agreements with the employment by Seller or arrangements maintained or contributed to (or formerly maintained or contributed to) by Seller, ESSI of any of its Affiliates employees or any trade past employees or business with the termination of any current employees; (whether iv) any claim resulting from defective products or not incorporatedworkmanship (including any recalls or returns with respect thereto) whichrelated to goods or services invoiced prior to Closing; (v) any claim arising from environmental liabilities, together with Seller or and (vi) any of its Affiliates, would be treated as a single employer claim under Section 414 any provision of the Internal Revenue New York Uniform Commercial Code of 1986or bulk sales law. LIMITATIONS ON WARRANTIES. EXCEPT FOR THOSE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, as amended (the “Code”)SELLER EXPRESSLY DISCLAIMS AND NEGATES AND BUYER HEREBY WAIVES, or Section 4001 of the Employee Retirement Income Security Act of 1974ALL OTHER REPRESENTATIONS AND WARRANTIES, as amended (“ERISA”) (an “ERISA Affiliate”); and (iii) any Excluded Owned Real PropertyEXPRESS, IMPLIED, STATUTORY OR OTHERWISE. AS EXAMPLES AND FOR THE AVOIDANCE OF DOUBT, BUT WITHOUT LIMITATION OF THE FOREGOING, THE ASSETS SHALL BE CONVEYED PURSUANT HERETO WITHOUT ANY WARRANTY OR REPRESENTATION WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE QUANTITY, PROFITABILITY, COLLECTIBILITY, QUALITY, CONDITION, SIZE, WEIGHT, SERVICEABILITY, CONFORMITY TO SAMPLES OR ANY OTHER ASPECT OF THE FIXTURES, EQUIPMENT OR OTHER PERSONAL PROPERTY INCLUDED AMONG THE ASSETS, ALL OF WHICH SHALL BE CONVEYED TO THE BUYER AS IS, WHERE IS, AND WITH ALL FAULTS AND DEFECTS AND IN THEIR PRESENT CONDITION AND STATE OF REPAIR AND WITHOUT ANY WARRANTIES WHATSOEVER OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE. THE BUYER ACKNOWLEDGES THAT THIS WAIVER IS CONSPICUOUS.