Common use of Excluded Assets; Excluded Liabilities Clause in Contracts

Excluded Assets; Excluded Liabilities. (a) Notwithstanding anything to the contrary contained in this Agreement, the Parties acknowledge and agree that the following assets of the Company, the Seller Parties or any Affiliate of any thereof (collectively, the “Excluded Assets”) are not a part of the transactions contemplated by this Agreement, and in no event shall either of the Buyer Parties, directly or indirectly (including without limitation through the Buyer’s ownership of the Shares or the Real Property Buyer’s ownership of the Owned Real Property), acquire any right, title or interest in or to any such Excluded Assets in connection therewith: (i) the cash of the Company (other than xxxxx cash, not to exceed $5,000); (ii) any intercompany balances of the Company; (iii) any Order or settlement made or entered in favor of the Company, any Seller Party or any Affiliate of any thereof in connection with any Legal Proceeding, including but not limited to with respect to any of the Excluded Liabilities; (iv) any asset relating to or arising out of any Legal Proceeding constituting an Excluded Liability; (v) the assets set forth on Schedule 5.9(a); and (vi) an amount equal to the Real Property Purchase Price. Notwithstanding anything to the contrary contained in this Agreement, the Company shall have the right, and shall use commercially reasonable efforts, to transfer prior to Closing all right, title and interest in and to the Excluded Assets from the Company to one or more Persons designated by the Parent. (b) Each of the Buyer Parties acknowledges and agrees that the Company does not own the name “Fleetwood” or any derivation thereof or any related marks and that, as a result of the purchase of the Shares, except as expressly set forth in the License Agreement, neither of the Buyer Parties will acquire any ownership interest in or rights to use the name “Fleetwood” or any derivation thereof or any related marks. Within thirty (30) days after the Closing, the Buyer shall take such actions as may be required to change the corporate name of the Company to a name that does not include “Fleetwood.” The Seller shall be responsible for all filing fees required to be paid in connection with filing the Company’s change of name amendments in the state of its incorporation and in each other state in which it is qualified to transact business. (c) Notwithstanding anything to the contrary contained in this Agreement, the Parties acknowledge and agree that the Excluded Liabilities are to be expressly retained either by the Seller Parties or one or more Affiliates thereof or by one or more Third Parties, and in no event shall either of the Buyer Parties be liable for any of the Excluded Liabilities as a result of the consummation of the transactions contemplated by this Agreement or the Real Property Purchase Agreement.

Excluded Assets; Excluded Liabilities. (a) Notwithstanding anything Prior to the contrary contained Closing, pursuant to an assignment and assumption agreement substantially in this the form of Exhibit A hereto (the "Assignment and --------- Assumption Agreement"), the Parties acknowledge Sellers shall cause the Company to assign and agree that transfer to the Sellers and the Sellers shall accept the following assets of the Company, Company (the Seller Parties or any Affiliate of any thereof (collectively, the “"Excluded Assets”) are not a part of the transactions contemplated by this Agreement, and in no event shall either of the Buyer Parties, directly or indirectly (including without limitation through the Buyer’s ownership of the Shares or the Real Property Buyer’s ownership of the Owned Real Property), acquire any right, title or interest in or to any such Excluded Assets in connection therewith: "): (i) all of the cash assets and properties listed on Schedule -------- 2.9(a); and ------ (ii) all of the stock or other ownership interests of IntelSat and Tripolus held by the Company. (b) Prior to the Closing, pursuant to the Assignment and Assumption Agreement, the Sellers shall cause the Company to assign and transfer to the Sellers, and Sellers shall assume, the following liabilities of the Company (the "Excluded Liabilities"): (i) All liabilities and obligations of the Company relating to the Excluded Assets and such other than xxxxx cash, not to exceed $5,000liabilities and obligations as are listed on Schedule 2.9(b); --------------- (ii) any intercompany balances All liabilities of the Company; Company relating to any obligations or liabilities owing to any current or former members of the Company (including any liabilities or obligations of the Company under the Repurchase Agreement except for the payment of the Additional Repurchase Payment as provided in Section 2.2(c) hereof); (iii) any Order or settlement made or entered in favor All liabilities and obligations of the Company, any Seller Party or any Affiliate of any thereof in connection with any Legal Proceeding, including but not limited to with respect to any of the Excluded Liabilities; (iv) any asset Company relating to or arising out of its previous ownership or operation of any Legal Proceeding constituting an Excluded Liability; former subsidiary, investment or business of the Company; (iv) All liabilities and obligations of the Company relating to any indebtedness for borrowed money owing to any lending or financial institution including the Bank Obligations; (v) All liabilities and obligations of the assets set forth on Schedule 5.9(a)Company owing to any Affiliates of the Company or any of the Sellers; and and (vi) an amount equal All liabilities and obligations of the Company relating to amounts owing for legal services rendered or costs advanced for any period prior to the Real Property Purchase Price. Notwithstanding anything to the contrary contained in this Agreement, the Company shall have the right, and shall use commercially reasonable efforts, to transfer prior to Closing all right, title and interest in and to the Excluded Assets from the Company to one or more Persons designated by the Parent. (b) Each of the Buyer Parties acknowledges and agrees that the Company does not own the name “Fleetwood” or any derivation thereof or any related marks and that, as a result of the purchase of the SharesDate, except as expressly set forth in the License Agreement, neither of the Buyer Parties will acquire any ownership interest in or rights to use the name “Fleetwood” or any derivation thereof or any related marks. Within thirty (30for those amounts listed on Schedule 3.14(d) days after the Closing, the Buyer shall take and such actions amounts as may be required to change owing for legal services ---------------- rendered or costs advanced between the corporate name of date hereof and the Company to a name that does not include “Fleetwood.” The Seller shall be responsible for all filing fees required to be paid in connection with filing the Company’s change of name amendments Closing Date and which were incurred in the state ordinary course of its incorporation and in each other state in which it is qualified to transact business. (c) Notwithstanding anything to the contrary contained in this Agreement, the Parties acknowledge and agree that the Excluded Liabilities are to be expressly retained either by the Seller Parties or one or more Affiliates thereof or by one or more Third Parties, and in no event shall either of the Buyer Parties be liable for any of the Excluded Liabilities as a result of the consummation of the transactions contemplated by this Agreement or the Real Property Purchase Agreement.

Excluded Assets; Excluded Liabilities. The assets listed in Section 2.4 of the Company Disclosure Schedule (awhich shall include any undeveloped Oil and Gas Interests described in Section 2.4 of the Company Disclosure Schedule) Notwithstanding anything to and the contrary contained other assets identified in this AgreementAgreement as excluded assets (collectively with any other assets that become excluded assets under Section 5.10(c) or Section 5.10(d), the Parties acknowledge and agree any receivables or other assets that the following assets are created on account of the Company, the Seller Parties or any Affiliate of any thereof (collectivelysaid assets, the “Excluded Assets”) are not a part of will be, prior to or at Closing, sold, assigned, distributed or otherwise transferred by the transactions contemplated Company or its Subsidiaries to Seller or its nominee; provided, however, any asset that becomes an Excluded Asset under Section 5.10(c) or Section 5.10(d) shall be assigned by this Agreement, and in no event shall either of the Buyer Parties, directly Company or indirectly (including without limitation through its Subsidiary after the Buyer’s ownership of the Shares or the Real Property Buyer’s ownership of the Owned Real Property), acquire any right, title or interest in or to any such Closing. Excluded Assets will not include any undeveloped Oil and Gas Interests described in connection therewith: (i) the cash Section 9.18 of the Company (other than xxxxx cashDisclosure Schedule. All obligations, not to exceed $5,000); (ii) any intercompany balances of the Company; (iii) any Order debts, or settlement made or entered in favor of the Company, any Seller Party or any Affiliate of any thereof liabilities incurred in connection with or associated with the Excluded Assets (and any Legal Proceedingother known or unknown, including but not limited to with respect to xxxxxx or inchoate, claims, obligations, debts or other liabilities that accrue or arise from the ownership or operation of the Excluded Assets at any time in the history of the Company or its Subsidiaries, the “Excluded Liabilities”) shall be assumed by Seller or its nominee without any reservation as of the Closing. None of the representations or warranties set forth in this Agreement or any of the other provisions of this Agreement shall be applicable to the Excluded Assets and Excluded Liabilities; (iv) any asset relating to or arising out of any Legal Proceeding constituting an Excluded Liability; (v) the assets set forth on Schedule 5.9(a); and (vi) an amount equal to the Real Property Purchase Price. Notwithstanding anything to the contrary contained in this Agreementthe foregoing, all Taxes, if any, resulting from the Company shall have the right, and shall use commercially reasonable efforts, to transfer prior to Closing all right, title and interest in and to of the Excluded Assets from the Company to one or more Persons designated by the Parent. (b) Each shall be considered an Excluded Liability only after utilization of the Buyer Parties acknowledges and agrees that the Company does not own the name “Fleetwood” or any derivation thereof or any related marks and that, as a result of the purchase of the Shares, except as expressly set forth in the License Agreement, neither of the Buyer Parties will acquire any ownership interest in or rights to use the name “Fleetwood” or any derivation thereof or any related marks. Within thirty (30) days after the Closing, the Buyer shall take such actions as may be required to change the corporate name of the Company to a name that does not include “FleetwoodCompany's available tax attribute carry forwards.” The Seller shall be responsible for all filing fees required to be paid in connection with filing the Company’s change of name amendments in the state of its incorporation and in each other state in which it is qualified to transact business. (c) Notwithstanding anything to the contrary contained in this Agreement, the Parties acknowledge and agree that the Excluded Liabilities are to be expressly retained either by the Seller Parties or one or more Affiliates thereof or by one or more Third Parties, and in no event shall either of the Buyer Parties be liable for any of the Excluded Liabilities as a result of the consummation of the transactions contemplated by this Agreement or the Real Property Purchase Agreement.

Excluded Assets; Excluded Liabilities. Notwithstanding Buyer’s desire to acquire, indirectly by virtue of Buyer’s purchase of the Shares, the Business, as a going concern, and the Assets, and Sellers’ desire to sell, indirectly by virtue of the sale of the Shares to Buyer, the Business, as a going concern, and the Assets, (x) there are certain assets of the Company that are not intended to be included in the Transaction and that will be transferred or assigned to Sellers (or their designees) prior to the Closing, and (y) there are certain liabilities of the Company that exist on or relate to the period prior to the Closing Date that Buyer does not accept responsibility for, and that will be paid off or otherwise settled to the extent possible prior to the Closing and/or for which Buyer shall be indemnified by Sellers from and against subject to the terms of Section 14. Accordingly, in respect of such matters, Sellers agree with Xxxxx as follows: (a) Notwithstanding anything Immediately prior to the contrary contained in this AgreementClosing the Company will assign, transfer, and set over to Sellers (or their designees) all of the Parties acknowledge right, title, and agree that interest of the Company in, to, and under the following assets of the Company, the Seller Parties or any Affiliate of any thereof Company (collectively, the “Excluded Assets”): (1) are not a part of the transactions contemplated by this AgreementCompany’s cash, cash equivalents, and in no event shall either of the Buyer Partiesrestricted cash, directly or indirectly except for (x) cash deposits (including without limitation through the Buyer’s ownership of the Shares or the Real Property Buyer’s ownership of the Owned Real Propertycash deposits made under utility contracts and lease agreements), acquire any right, title or interest in or to any such Excluded Assets in connection therewith: and (iy) the cash advances made by customers of the Company and held by the Company under contracts with its customers; (other than xxxxx cash2) the Company’s Accounts Receivable, refunds, notes receivable, income earned but not billed, and retentions for work completed prior to exceed $5,000)Closing; (3) all claims, actions, proceedings, damages, liabilities, and expenses of every kind that the Company may have against or be able to recover from any Person related to the operation of the Business prior to the Closing, whether known or unknown, including, but not limited to, all insurance claims; (4) the Company’s tax refunds related to the operation of the Business prior to the Closing; and (ii5) any intercompany balances the Company’s interest in Xxxxxxxx Hawaiian Properties, Inc., a wholly owned subsidiary of the Company; (iii) any Order or settlement made or entered in favor of the Company, any Seller Party or any Affiliate of any thereof in connection with any Legal Proceeding, including but not limited to with respect to any of the Excluded Liabilities; (iv) any asset relating to or arising out of any Legal Proceeding constituting an Excluded Liability; (v) the assets set forth on Schedule 5.9(a); and (vi) an amount equal to the Real Property Purchase Price. Notwithstanding anything to the contrary contained in this Agreement, the Company shall have the right, and shall use commercially reasonable efforts, to transfer prior to Closing all right, title and interest in and to the Excluded Assets from the Company to one or more Persons designated by the Parent. (b) Each Buyer will not accept responsibility for, and Sellers will exercise commercially reasonable efforts to cause the Company to pay or otherwise satisfy the following debts and liabilities in existence as of the Buyer Parties acknowledges Closing Date (the “Excluded Liabilities”): (1) all Trade Payables (other than Trade Payables that relate directly to items specified in Section 2.3(d) or other prepaid assets or expenses benefiting periods following the Closing Date), notes payable (including notes payable to banks and agrees other lenders, notes payable related to funds received under any federal, state, or local program, and notes payable to Sellers or affiliates of Sellers), and similar obligations of the Company owed to vendors and suppliers of goods and services to the Company, to Sellers (or any affiliate of Sellers), or to any other Person, as of the Closing Date, but excluding the obligations of the Company that are due and payable in the Ordinary Course of Business following the Closing Date (for the post-Closing period) under (x) equipment lease agreements related to equipment that is included in the Assets and described in Schedule 4.7, and (y) the Lease for the Leased Real Property; (2) all prior, current, and future liabilities and obligations arising out of or related to the Company’s work performed prior to the Closing on any project, which retained liability includes (without limitation) all warranty obligations and warranty proceeds payable (including all warranty obligation for well pumps installed prior to the Closing), construction defect claims, performance bond claims, payment bond claims, and maintenance/warranty bond claims; (3) all taxes of every kind owed by the Company as of the Closing Date, including general excise taxes, income taxes, withholding taxes, and property taxes as of the Closing Date; (4) all payment obligations of any kind owed by the Company to or for the benefit of its employees as of the Closing Date, including all salary, wages, bonuses, commissions, fees, expense reimbursements, insurance premiums, and contributions to Benefit Plans, as of the Closing Date, and all obligations owed as of the Closing Date to employees of the Company with respect to accrued but unused vacation, sick leave and paid time-off for the period of their employment prior to the Closing Date (the “Accrued Leave Benefit Amounts”), (which obligations shall be satisfied by the Sellers as part of the AP True-Up pursuant to Section 2.3(c)(2)); (5) all obligations of any kind owed by the Company arising from, in respect of, or otherwise related to any Litigation against or affecting the Company, the Business, the Assets, or Sellers that has been commenced prior to the Closing Date or that is commenced after the Closing Date but arise out of actions or events that occurred prior to the Closing Date, including, but without limitation, all attorneys’ fees and expenses, court costs, other costs and expenses, and all losses, claims, obligations, demands, assessments, penalties, fines, forfeitures, liabilities, costs, and damages arising from, in respect of, or otherwise related to such Litigation; (6) all obligations and liabilities of any kind owed by the Company under or with respect to any Contract to which the Company is a party or by which the Company is bound accrued for all periods prior to the Closing Date; (7) all liabilities and obligations arising out of or resulting from any failure by the Company to comply with any applicable law, judgment, order, guidelines, regulations, and rules for any period prior to the Closing Date; (8) all liabilities and obligations of the Company to any current or former shareholder, director, or officer of the Company or to any affiliate of the Company (including the Company’s “inter-company payables”); and (9) all attorneys’, brokers’, consultants’ or other advisors’ fees and expenses, and other out-of-pocket costs incurred by the Sellers in connection with the Transaction, regardless of when incurred. (c) The parties acknowledge that it is difficult to determine the exact amounts of Excluded Assets and Excluded Liabilities of the Company immediately prior to the Closing, and because of the difficulty of such determinations, the parties agree that the Company does not own following procedures will be followed at the name Closing and during the three (3) month period following the Closing Date (the “Fleetwood” True-Up Period”): (1) On or any derivation thereof or any related marks before the thirtieth (30th) day after the Closing Date, Sellers will deliver to Buyer a balance sheet and that, as a result income statement of the purchase Company (a “Closing Balance Sheet”) prepared as of the SharesClosing Date (the “Closing Balance Sheet Date”). The Closing Balance Sheet will include a description of all cash, except all Accounts Receivable, and other Excluded Assets and all Excluded Liabilities of the Company as expressly of the Closing Balance Sheet Date. The Closing Balance Sheet will be utilized by the parties as the basis for the true-up procedures set forth in this Section 2.3(c) during the License AgreementTrue-Up Period. The parties acknowledge and agree that income earned by the Company prior to the Closing Date, neither and expenses incurred by the Company prior to the Closing Date, that are billed or paid after the Closing, belong to Sellers and will be handled and included in the True-Up process. (2) Sellers will not be entitled to receive the cash or the Accounts Receivable and proceeds therefrom that are included among the Excluded Assets pursuant to Section 2.3(a)(1)&(2) until the True-Up Period has ended as provided in Section 2.3(c)(3). Any cash or Accounts Receivable included among the Excluded Assets received or recorded during the True-Up Period will be booked by the Company as a debit to cash or Accounts Receivable, as appropriate, with the offsetting credit to an accounts payable true-up account (“AP True-Up”), and any liabilities included among the Excluded Liabilities paid or accrued during the True-Up Period will be booked as a debit to the AP True-Up and credited to cash or the appropriate Excluded Liability account. On the last day of each month during the True-Up Period (or on the first business day following such last day if such last day is not a business day), the Company will prepare a listing of all invoices paid during such month, at which time the Buyer will record such invoices as being pre-Closing (and thus an Excluded Liability) or post-Closing. (3) Within fifteen (15) days after the last day of the True-Up Period, Buyer Parties will acquire reconcile and close the AP True-Up and prepare a calculation that aggregates all Excluded Assets and Excluded Liabilities for the Company, provided that Sellers will be given credit for any ownership interest unpaid retentions allocable to work completed prior to Closing where the Company has reasonable assurance that the retention will ultimately be paid. Any credit balance in or rights the AP True-Up for the Company will be paid by Buyer to use Sellers, in cash, by wire transfer in accordance with Sellers’ instructions (but in any event within five (5) days after Buyer’s delivery of the name “Fleetwood” or AP True-Up calculation to Sellers), and any derivation thereof or debit balance in the AP True-Up will be paid by Sellers to the Buyer in cash, by wire transfer in accordance with Buyer’s instructions, in either case as soon as practicable (but in any related marksevent within five (5) days after Xxxxx’s delivery of the AP True-Up calculation to Sellers). Within In the event that Xxxxx and Sellers are unable to reach a mutually acceptable definitive determination with respect to the AP True-Up within thirty (30) days after of the Closinglast day of the True-Up Period, the Buyer shall take such actions as may be required parties will attempt to change resolve their dispute in accordance with the corporate name of the Company to a name that does not include “Fleetwooddispute resolution procedures set forth in Section 18.13.” The Seller shall be responsible for all filing fees required to be paid in connection with filing the Company’s change of name amendments in the state of its incorporation and in each other state in which it is qualified to transact business. (c) Notwithstanding anything to the contrary contained in this Agreement, the Parties acknowledge and agree that the Excluded Liabilities are to be expressly retained either by the Seller Parties or one or more Affiliates thereof or by one or more Third Parties, and in no event shall either of the Buyer Parties be liable for any of the Excluded Liabilities as a result of the consummation of the transactions contemplated by this Agreement or the Real Property Purchase Agreement.