Retained Assets; Retained Liabilities. Notwithstanding anything to the contrary contained in this Agreement, (i) the Sellers shall not sell, assign or transfer, and Purchaser shall not purchase or acquire, (A) the Retained CDO Interests, (B) the Outstanding GLS Servicing Advance Amount, (C) the Outstanding GKKL Interest Advance Amount, (D) the Outstanding GKKM Special Servicing Advance Amount, and (E) any and all defenses, counterclaims or set-off rights of any of the Sellers, any of their respective Affiliates, or any of their respective officers, directors or Representatives, to the extent relating solely to any of the Retained Liabilities (the shares, interests and other assets described in clauses (A) through (E), collectively, the “Retained Assets”) and (ii) the Sellers shall retain responsibility for, and Purchaser shall not assume and shall not be responsible to pay, perform or discharge, any liabilities or obligations of the Sellers or any of their Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (collectively, the “Retained Liabilities”). Without limiting the generality of the foregoing, the Retained Liabilities shall include, but not be limited to, (w) any liability for Taxes relating to or arising out of the Transferred Assets that are attributable to any taxable period ending on or prior to the Closing Date or, with respect to any taxable period that begins prior to and ends after the Closing Date, the portion of such period ending on the Closing Date, (x) any liabilities and obligations of the Sellers or any of their Affiliates arising out of the CDO Agreements, the Transferred Assets or the CDO Issuer Assets, to the extent such liabilities or obligations arise in respect of or relate to the management of the CDO Issuers or servicing of the CDO Issuer Assets prior to the Closing Date, (y) any liabilities, obligations or covenants of Sellers in connection with the Jxxxxxx Proceedings, any Wxxxx Fargo Indemnity Letter and the matters disclosed in Schedules 3.01(c) and 3.01(d) whether arising before, on or after the Closing Date, and (z) any liabilities and obligations of the Sellers or any of their Affiliates related to or arising out of the Retained Assets whether arising before, on or after the Closing Date.
Retained Assets; Retained Liabilities. The parties acknowledge and agree that (i) the Company caused certain assets historically owned by the Company and its Subsidiaries in respect of the Gastrodiagnostic Business, as set forth in Part A of Schedule I to this Agreement, to be spun off and contributed to Gastro Company by virtue of the Gastrodiagnostic Business Distribution on September 4, 2009 (the “Spin-Off Date”), (ii) after the Spin-Off Date and immediately prior to the Closing Date, the Company caused certain assets in respect of the Second Spin Business and assets of the Company or its Subsidiaries used to operate the Second Spin Business, as set forth in Part B of Schedule I to this Agreement (such retained assets and businesses collectively referred to herein as the “Retained Assets”), to be spun off and contributed to New Co. by virtue of the Second Spin and Distribution on the Second Spin-Off Date, and (iii) notwithstanding any provision to the contrary contained in this Agreement, the Gastrodiagnostic Business Distribution Documents, the Second Spin and Distribution Documents, or any other document governing or effectuating the Gastrodiagnostic Business Distribution, Second Spin and Distribution or the Company Reorganization, as the case may be, Parent shall not assume by operation of law, as a consequence of the Merger or otherwise, and the Company Stockholder as of immediately prior to the Spin-Off Date shall retain and be responsible for, any and all Liabilities of the Company or any of its Subsidiaries arising out of, related to or in connection with the Retained Assets, the Gastrodiagnostic Business, the Gastrodiagnostic Business Distribution, the Second Spin Business, the Second Spin and Distribution and the Company Reorganization and such other Liabilities set forth in Schedule II of this Agreement (collectively, the “Retained Liabilities”).
