Common use of Retained Assets Clause in Contracts

Retained Assets. The Parties expressly agree that excluded from the Assets sold or assigned to Buyer hereunder are (i) all accounts receivable arising out of or generated by the Business prior to the Closing, whether or not reduced to a xxxx or invoice prior to the Closing (the “Seller Receivables”), a listing of which is attached hereto as Schedule 1.3(a); provided, further, the Parties acknowledge and agree that the Seller Receivables include the accounts receivable that have been pledged as security to Fifth Third Bank pursuant to that certain promissory note, dated February 5, 2005, by and among Fifth Third Bank and Seller (the “Pledged Receivables”); (ii) all personnel records and other records that the Seller is required by law to retain in its possession; (iii) all governmental permits and other governmental authorizations that the Seller is required by law to retain in its possession (iv) all cash on hand, cash equivalents, investments and bank accounts of the Seller at the Closing Date other than as set forth in Section 1.1(1) above, (v) all claims for the refund of Taxes and other governmental charges of whatever nature, (vi) that certain real property lease by and between Seller and MSAC Limited (relating to 00000 Xxxxxxxx Xxxxxx, Country Club Hills, Illinois 60478, having a commencement date of February 18, 2006) (the “Country Club Hills Property”), (vii) subject to Section 1.10 hereof, those certain assets located at the Country Club Hills Property as specified on Schedule 1.3(b) (the “Country Club Hills Inventory”), (viii) all rights, title and interest in and to the Homsys software (including any licenses thereto) utilized by Seller for the billing and collection of accounts receivable, (ix) those books, records and documents necessary for Seller and/or Fifth Third Bank to collect the Seller Receivables (including the Pledged Receivables), and (x) without in any manner limiting the foregoing, those assets listed on Schedule 1.3(c) hereto (collectively, the “Retained Assets”).

Retained Assets. The Parties expressly agree that excluded from the Assets sold or assigned to Buyer hereunder are (ia) all accounts receivable arising out of or generated by the Business prior to the Closing, whether or not reduced to a xxxx or invoice prior to the Closing (the “Seller Receivables”Notwithstanding Section 2.1(a), a listing all of which is attached hereto as Schedule 1.3(a); provided, further, the Parties acknowledge and agree that the Seller Receivables include the accounts receivable that have been pledged as security to Fifth Third Bank pursuant to that certain promissory note, dated February 5, 2005, by and among Fifth Third Bank and Seller (the “Pledged Receivables”); (ii) all personnel records and other records that the Seller is required by law to retain in its possession; (iii) all governmental permits and other governmental authorizations that the Seller is required by law to retain in its possession (iv) all cash on hand, cash equivalents, investments and bank accounts of the Seller at the Closing Date other than as set forth in Section 1.1(1) above, (v) all claims for the refund of Taxes and other governmental charges of whatever nature, (vi) that certain real property lease by and between Seller and MSAC Limited (relating to 00000 Xxxxxxxx Xxxxxx, Country Club Hills, Illinois 60478, having a commencement date of February 18, 2006) (the “Country Club Hills Property”), (vii) subject to Section 1.10 hereof, those certain assets located at the Country Club Hills Property as specified on Schedule 1.3(b) (the “Country Club Hills Inventory”), (viii) all rightsSeller's right, title and interest in the following properties, assets and to rights shall be excluded from the Homsys software (including any licenses thereto) utilized by Seller for the billing and collection of accounts receivable, (ix) those books, records and documents necessary for Seller and/or Fifth Third Bank to collect the Seller Receivables (including the Pledged Receivables), and (x) without in any manner limiting the foregoing, those assets listed on Schedule 1.3(c) hereto Assets (collectively, the “"Retained Assets”"): (i) any assets and associated claims arising out of Retained Assets or Retained Liabilities; (ii) Seller's 50% interest in Cyanco a non- corporate joint venture with Degussa Corporation for producing and marketing liquid sodium cyanide ("Cyanco") including Seller's interest in Nevada Chemicals, Inc.; (iii) the office furniture, fixtures and equipment in two offices located at 0000 Xxxxx Xxxxx Xxxxxxx in Sandy, Utah, to be used by Cyanco; (iv) the real property located at 0000 Xxxxx Xxxxx Xxxxxxx in Sandy, Utah, which will be leased to Purchaser under the terms of a lease agreement to be entered into with Seller (the "Lease Agreement"), which Lease Agreement shall have an initial term of one year with Purchaser having an option to renew such term for an additional year; (v) Seller's 50% interest in West Africa Chemicals, Inc.; (vi) the first $600,000 (six hundred thousand dollars) in accounts receivables of West Africa Chemicals, Inc. as reflected on the June 30, 2000 Balance Sheet or which arise thereafter in the ordinary course of business; (vii) all contracts between Seller and a third party in which the third party is in material default or breach or is subject of bankruptcy, insolvency, or similar proceedings; (viii) any asset of Seller not used primarily in the Business and not necessary for the conduct of the Business; (ix) any asset, offset, refund, insurance proceeds, receipts and other benefits related to litigation for which Seller is retaining the liability related to such litigation; and (x) all Tax refunds or prepaid deposits as shown on the June 30, 2000 Balance Sheet as being retained by Seller.

Retained Assets. The Parties expressly agree that excluded from the Assets sold Notwithstanding Section 2.01 hereof or assigned to Buyer hereunder are (i) all accounts receivable arising out of or generated by the Business prior anything else in this Agreement to the Closingcontrary, whether or not reduced to a xxxx or invoice prior to the Closing (the “Seller Receivables”), a listing all of which is attached hereto as Schedule 1.3(a); provided, further, the Parties acknowledge Seller’s and agree that the Seller Receivables include the accounts receivable that have been pledged as security to Fifth Third Bank pursuant to that certain promissory note, dated February 5, 2005, by and among Fifth Third Bank and Seller (the “Pledged Receivables”); (ii) all personnel records and other records that the Seller is required by law to retain in its possession; (iii) all governmental permits and other governmental authorizations that the Seller is required by law to retain in its possession (iv) all cash on hand, cash equivalents, investments and bank accounts of the Seller at the Closing Date other than as set forth in Section 1.1(1) above, (v) all claims for the refund of Taxes and other governmental charges of whatever nature, (vi) that certain real property lease by and between Seller and MSAC Limited (relating to 00000 Xxxxxxxx Xxxxxx, Country Club Hills, Illinois 60478, having a commencement date of February 18, 2006) (the “Country Club Hills Property”), (vii) subject to Section 1.10 hereof, those certain assets located at the Country Club Hills Property as specified on Schedule 1.3(b) (the “Country Club Hills Inventory”), (viii) all rightsAffiliates’ right, title and interest in and to the Homsys software (including any licenses thereto) utilized following properties, assets and rights shall be excluded from the Acquired Assets and not sold or assigned to Buyer and shall be retained by Seller or any of its Affiliates for the billing period accruing prior to and collection of accounts receivable, (ix) those books, records and documents necessary for Seller and/or Fifth Third Bank to collect after the Seller Receivables (including the Pledged Receivables), and (x) without in any manner limiting the foregoing, those assets listed on Schedule 1.3(c) hereto Closing Date (collectively, the “Retained Assets”): (a) Unrestricted Cash; (b) all non-assignable or non-transferable Permits of the Business (to the extent the parties are unable to obtain the required consent to the assignment of any such Permit); (c) any claims arising out of any Retained Assets or Retained Liabilities, including, without limitation, that certain action filed by Seller to contest the property tax assessment for 2004 issued by Pinellas County in connection with the Resort as described in Schedule 2.02(g) attached hereto and any future actions filed by Seller, if any, relating to the property tax assessment for 2005 by Pinellas County in connection with the Resort; (d) Seller’s right to payments from Aon Corporation in the total amount of Four Thousand Six Hundred Forty Dollars and Sixty-Two Cents ($4,640.62) pursuant to that certain General Release dated as of July 12, 2005, by and between Seller and Aon Corporation; (e) any asset of Seller or any of its Affiliates not used in connection with the Business, including, without limitation, all books, files, records and related documents and materials of Seller and any of its Affiliates not related to the Business; (f) all personal property owned by any Employee or any employee of Westin or Troon, including certain printers, docking stations and fitness equipment, and the furniture and computer equipment in the owner’s office at the Resort set forth in Schedule 2.02(f), including, without limitation, the laptop and Blackberry used by Kxxxx Xxxx; and (g) the assets set forth in Schedule 2.02(g) attached hereto. In the event of a conflict between the definition of “Acquired Assets” and the definition of “Retained Assets”, the definition of “Retained Assets” shall control.

Retained Assets. The Parties expressly agree that excluded Notwithstanding anything contained herein to the contrary, the Seller shall not sell, transfer, convey or deliver, or cause to be sold, transferred, conveyed or delivered, to the Buyer (or the Sub if designated by the Buyer), and the Buyer (or the Sub if designated by the Buyer) shall not purchase from the Assets sold or assigned to Buyer hereunder are Seller the following assets, properties, interests and rights of the Seller (the "Retained Assets"): (i) all accounts receivable arising out books and records solely related to the Retained Liabilities (as hereinafter defined); (ii) any cash or bank account balances of or generated the Seller in excess of (x) an amount reasonably anticipated to be necessary to fund the Business from the Closing Date through December 31, 1999 to be calculated as of the Closing Date by the Business prior Seller and reasonably agreed to by the Closing, whether Buyer (or not reduced the Sub if designated by the Buyer) and (y) cash to a xxxx or invoice fund the outstanding but unpaid checks as of the Closing Date; such amount to be calculated at least three business days prior to the Closing (the “Seller Receivables”), a listing of which is attached hereto as Schedule 1.3(a); provided, further, the Parties acknowledge and agree that by the Seller Receivables include on a certificate detailing the accounts receivable that have been pledged as security to Fifth Third Bank pursuant to that certain promissory note, dated February 5, 2005, Seller's calculation of excess cash and certified by and among Fifth Third Bank and Seller (the “Pledged Receivables”); (ii) all personnel records and other records that the Seller is required by law to retain as complete and correct along with copies of all documents used in its possession; calculating said amounts; (iii) all governmental permits and other governmental authorizations that the shareholders' agreement among the Seller is required by law to retain and the Seller Shareholders listed in its possession Section 2.17 of the Seller Disclosure Schedule (the "Shareholders' Agreement"); (iv) all cash on hand, cash equivalents, investments and bank accounts any Employment Agreement (as hereinafter defined) for which the employee of the Seller at who is a party to such Employment Agreement does not receive an offer of employment from the Buyer (or the Sub if designated by the Buyer) following the Closing Date other than as set forth in pursuant to Section 1.1(14.9(a) above, (the "Retained Employment Contracts"); and (v) all claims for the refund of Taxes Seller's workers compensation insurance policy (policy number 97-NK-0608-9) with State Farm Fire and other governmental charges of whatever nature, Casualty Company and business insurance policy (vipolicy number 97-EK-5805-2) that certain real property lease by and between Seller and MSAC Limited (relating to 00000 Xxxxxxxx Xxxxxx, Country Club Hills, Illinois 60478, having a commencement date of February 18, 2006) with State Farm General Insurance Company (the “Country Club Hills Property”"Retained Insurance Policies"), (vii) subject to Section 1.10 hereof, those certain assets located at the Country Club Hills Property as specified on Schedule 1.3(b) (the “Country Club Hills Inventory”), (viii) all rights, title and interest in and to the Homsys software (including any licenses thereto) utilized by Seller for the billing and collection of accounts receivable, (ix) those books, records and documents necessary for Seller and/or Fifth Third Bank to collect the Seller Receivables (including the Pledged Receivables), and (x) without in any manner limiting the foregoing, those assets listed on Schedule 1.3(c) hereto (collectively, the “Retained Assets”).

Retained Assets. The Parties expressly agree that excluded from Except for the Purchased Assets sold and the Purchased IP Assets, Buyer shall not acquire any, and Sellers and IP Sellers shall retain all right, title, benefit or assigned interest in, to Buyer hereunder are (i) all accounts receivable arising out or under any other assets, properties or rights of Sellers or generated by the Business prior to the Closing, whether or not reduced to a xxxx or invoice prior to the Closing IP Sellers (the “Seller Receivables”"Retained Assets"), a listing of which is attached hereto as Schedule 1.3(a); providedincluding the following assets, further, the Parties acknowledge properties and agree that the Seller Receivables include the accounts receivable that have been pledged as security to Fifth Third Bank pursuant to that certain promissory note, dated February 5, 2005, by and among Fifth Third Bank and Seller rights: (the “Pledged Receivables”); (ii) all personnel records and other records that the Seller is required by law to retain in its possession; (iii) all governmental permits and other governmental authorizations that the Seller is required by law to retain in its possession (iva) all cash on hand, and cash equivalents, investments and bank accounts equivalents of the Seller at the Closing Date other than as set forth in Section 1.1(1) above, any Seller; (vb) all claims for the refund of Taxes marketable securities; (c) all Tax Returns and Tax records and any rights to Tax refunds or credits and other governmental charges of whatever naturenature for periods prior to the Closing, and all deferred Tax assets; (vid) all rights under any Contract that certain is not included in the Assumed Contracts or any Permit that is not transferable; (e) except as provided in Section 2.1(m), all insurance policies and insurance contracts and all rights related thereto; (f) all rights in connection with, and assets of, any of Sellers' Benefit Plans, except as provided in Article 8; (g) all minute books and stock records of Sellers and other similar corporate books and records of Sellers; (h) all shares of Sellers' capital stock held in treasury; (i) all rights of Sellers arising under this Agreement or the Transaction Documents; (j) the real property lease by located at Gastonia, North Carolina, Spartanburg, South Carolina; Avon Lake, Ohio, Rio, Brazil, Hamburg, Germany, and between Seller Brecksville, Ohio and MSAC Limited set forth on Schedule 2.3(j); (relating k) all Intellectual Property of Sellers and IP Sellers not transferred pursuant to 00000 Xxxxxxxx Xxxxxx, Country Club Hills, Illinois 60478, having a commencement date of February 18, 2006) Section 2.2 and the Intellectual Property licensed to Buyer as Licensed IP (the “Country Club Hills Property”"Retained IP Assets"); (l) the stock of and all ownership interest in FCC Acquisition Corp., a Delaware corporation and wholly-owned subsidiary of Noveon Textile; (m) all trade names, trademarks, service marks and domain names of Noveon and The Lubrizol Corporation or its or their Affiliates and subsidiaries not transferred pursuant to Section 2.2, including the names "Noveon" and "Lubrizol" and all of its and their derivatives, the composite trademarks "Lubrizol Foam Control Products" and "Lubrizol Performance Products," and the Noveon(R), (viiHycar(R) subject to and Vycar(R) registered trademarks, provided that nothing in this Section 1.10 hereof2.3(m) shall limit any rights of Buyer under Section 7.18(c) and Section 7.19, those certain assets located at the Country Club Hills Property as specified on Schedule 1.3(b) (the “Country Club Hills Inventory”), (viii) all rights, title and interest in and to the Homsys software (including any licenses thereto) utilized by Seller rights of or for the billing and collection of accounts receivableprotection of, (ix) those books, records and documents necessary for Seller and/or Fifth Third Bank to collect the Seller Receivables (including the Pledged Receivables), and (x) without in any manner limiting the foregoing, those assets listed on Schedule 1.3(c) hereto (collectively, the “Retained Assets”).Buyer thereunder;

Retained Assets. The Parties expressly agree that excluded from the Assets sold Notwithstanding Section 2.01 hereof or assigned to Buyer hereunder are (i) all accounts receivable arising out of or generated by the Business prior anything else in this Agreement to the Closingcontrary, whether or not reduced to a xxxx or invoice prior to the Closing (the “Seller Receivables”), a listing all of which is attached hereto as Schedule 1.3(a); provided, further, the Parties acknowledge Seller’s and agree that the Seller Receivables include the accounts receivable that have been pledged as security to Fifth Third Bank pursuant to that certain promissory note, dated February 5, 2005, by and among Fifth Third Bank and Seller (the “Pledged Receivables”); (ii) all personnel records and other records that the Seller is required by law to retain in its possession; (iii) all governmental permits and other governmental authorizations that the Seller is required by law to retain in its possession (iv) all cash on hand, cash equivalents, investments and bank accounts of the Seller at the Closing Date other than as set forth in Section 1.1(1) above, (v) all claims for the refund of Taxes and other governmental charges of whatever nature, (vi) that certain real property lease by and between Seller and MSAC Limited (relating to 00000 Xxxxxxxx Xxxxxx, Country Club Hills, Illinois 60478, having a commencement date of February 18, 2006) (the “Country Club Hills Property”), (vii) subject to Section 1.10 hereof, those certain assets located at the Country Club Hills Property as specified on Schedule 1.3(b) (the “Country Club Hills Inventory”), (viii) all rightsAffiliates’ right, title and interest in and to the Homsys software (including any licenses thereto) utilized following properties, assets and rights shall be excluded from the Acquired Assets and not sold or assigned to Buyer and shall be retained by Seller or any of its Affiliates for the billing period accruing prior to and collection of accounts receivable, (ix) those books, records and documents necessary for Seller and/or Fifth Third Bank to collect after the Seller Receivables (including the Pledged Receivables), and (x) without in any manner limiting the foregoing, those assets listed on Schedule 1.3(c) hereto Closing Date (collectively, the “Retained Assets”): (a) Unrestricted Cash; (b) all non-assignable or non-transferable Permits of the Business (to the extent the parties are unable to obtain the required consent to the assignment of any such Permit) (any such Permits collectively the “Retained Permits”); (c) any claims arising out of any Retained Assets or Retained Liabilities, including those certain actions filed by Seller to contest the property tax assessments for 2004, 2005 and 2006 issued by Pinellas County in connection with the Resort as described in Schedule 4.09 attached hereto; (d) Seller’s right to payments from Aon Corporation in the total amount of Four Thousand Six Hundred Forty Dollars and Sixty-Two Cents ($4,640.62) pursuant to that certain General Release dated as of July 12, 2005, by and between Seller and Aon Corporation; (e) all books, files, records and related documents and materials of Seller and any of its Affiliates not related to the Business; (f) all personal property owned by any Employee or any employee of Troon all of which is set forth in Schedule 2.02(f); (g) all Accounts Receivable accruing prior to the Closing Date to the extent a corresponding amount is not included in the Total Current Assets used in the Statement of the Closing Date Working Capital as finally determined pursuant to Section 2.07 hereof; (h) the assets set forth in Schedule 2.02(h) attached hereto; and (i) except as provided in Section 2.01(x), all policies of insurance of any Seller Entities, all rights thereunder, and any rights to any premiums or premium rebates or credits thereunder. In the event of a conflict between the definition of “Acquired Assets” and the definition of “Retained Assets”, the definition of “Retained Assets” shall control.

Retained Assets. The Parties expressly agree that excluded from Notwithstanding the Assets sold terms of SECTION 1.1, the following assets (collectively, the "Retained Assets") shall be retained by Rainbow and shall not be sold, transferred or assigned to Buyer hereunder Buyer: (a) All assets owned by Rainbow used solely and exclusively in the business of selling rubber belting products and other products that are not competitive in any manner with the Ram Business (ithe "CIGO Business"), as all such assets are set forth on SCHEDULE 1.2(A); provided that, those assets used in both the CIGO Business and the Ram Business identified on SCHEDULE 1.2(A) with an asterisk shall also be deemed Retained Assets; (b) All books and other ownership records of Rainbow; (c) All insurance policies of Rainbow obtained in connection with the Ram Business and all accounts receivable rights of Rainbow under and arising out of or generated by the Business prior such insurance policies, including right to receive refunds of prepaid insurance; provided that, Rainbow shall deliver copies of all such policies to Buyer and shall use best efforts to assist Buyer in obtaining reimbursement under such policies that pertain to the Closing, whether or not reduced to a xxxx or invoice Ram Business following the Closing for claims that may be covered thereunder; (d) All cash and cash equivalents received by Rainbow prior to the Closing Date; (e) All rights to receive refunds with respect to any taxes paid by Sellers in connection with the Ram Business; (f) All existing life insurance policies insuring the lives of one or more Owners, and all cash surrender values related thereto; (g) The right to have Uni-Chains A/S and/or Maskinfabrikken Baeltix grant to Rainbow a paid-up, non-assignable, royalty-free non-exclusive license (with no right to sublicense) to make, have made, use, sell or offer to sell products covered by any U.S. patents that may be granted upon Uni-Chain's pending U.S. Patent Applications Serial No. 29/062,094 - Chain Link Module for Conveyor Belt, filed November 7, 1996, Serial No. 08/661,427 - Chain Link Conveyor filed June 11, 1996, and Serial No. 29/085,506 - Chain Link Belt for a Conveyor Belt, filed March 25, 1998 (the “Seller Receivables”), a listing of which is attached hereto as Schedule 1.3(a"Uni Patent Pending License"); providedprovided that, furtherSellers shall not directly or indirectly manufacture, distribute, transfer or sell any products that may be covered by the Parties acknowledge Uni Patent Pending License following the Closing , shall not transfer any rights in connection therewith to any third party, and agree that shall not use the Seller Receivables include Uni Patent Pending License in any manner without Buyer's prior written consent; (h) The non-exclusive license under Rexnord Corp.'s U.S. Patent No. 4,909,380 issued on March 20, 1990, and U.S. Patent 5,096,050 issued on March 17, 1992, to sell in the accounts receivable that have been pledged United States Uni-Chains Int. A/S products known as security to Fifth Third Bank PRR and PRR Tab Products manufactured by Uni-Chains set forth in the Settlement Agreement, effective April 1, 1994, among Uni-Chains, Rainbow, Eagle Supply and Plastics, Inc., and Rexnord Corporation (the "PRR License"); provided that, (i) pursuant to that certain promissory noteSECTION 6.10 hereof, dated February 5Rainbow shall use reasonable commercial efforts to transfer all of its rights under the PRR License to Buyer, 2005, by and among Fifth Third Bank and Seller (the “Pledged Receivables”); (ii) all personnel records Sellers shall not manufacture, distribute, transfer or sell any products that may be covered by the PRR License following the Closing, shall not transfer any rights in connection therewith to any third party; and other records that shall not use the Seller is required by law to retain in its possession; (iii) all governmental permits and other governmental authorizations that the Seller is required by law to retain in its possession (iv) all cash on hand, cash equivalents, investments and bank accounts of the Seller at the Closing Date other than as set forth in Section 1.1(1) above, (v) all claims for the refund of Taxes and other governmental charges of whatever nature, (vi) that certain real property lease by and between Seller and MSAC Limited (relating to 00000 Xxxxxxxx Xxxxxx, Country Club Hills, Illinois 60478, having a commencement date of February 18, 2006) (the “Country Club Hills Property”), (vii) subject to Section 1.10 hereof, those certain assets located at the Country Club Hills Property as specified on Schedule 1.3(b) (the “Country Club Hills Inventory”), (viii) all rights, title and interest in and to the Homsys software (including any licenses thereto) utilized by Seller for the billing and collection of accounts receivable, (ix) those books, records and documents necessary for Seller and/or Fifth Third Bank to collect the Seller Receivables (including the Pledged Receivables), and (x) without PRR License in any manner limiting the foregoing, those assets listed on Schedule 1.3(c) hereto (collectively, the “Retained Assets”).without Buyer's prior written consent;

Retained Assets. The Parties expressly agree that excluded from Distribution shall retain, and the Purchased Assets sold shall not include, the following assets (collectively, the "RETAINED ASSETS"): (a) the consideration to be delivered to Distribution pursuant to this Agreement; (b) the other rights of Distribution hereunder (including, as a matter of clarification, those of USF) or assigned to Buyer hereunder are under Related Agreements; (ic) the outstanding capital stock, minute books, stock books and seals of Distribution and each of its Subsidiaries; (d) all accounts receivable arising out claims, choses in action, causes of action and judgments with respect to any Retained Obligation; (e) all cash other than petty cash held at operating locations of Distribution, cash in banks, xxxx equivalents, bank and mutual fund accounts, deposits, investments, securities and safe deposit boxes of Distribution; provided, however, the physical lockboxes listed on Schedule 2.2 are a Purchased Asset, but for the avoidance of doubt all cash, checks or generated by the Business prior to the Closing, whether or not reduced to a xxxx or invoice other assets in such physical lockboxes prior to the Closing Date are Retained Assets; (the “Seller Receivables”), a listing of which is attached hereto as Schedule 1.3(a); provided, further, the Parties acknowledge and agree that the Seller Receivables include the accounts receivable that have been pledged as security to Fifth Third Bank pursuant to that certain promissory note, dated February 5, 2005, by and among Fifth Third Bank and Seller (the “Pledged Receivables”); (iif) all personnel records and other records that the Seller is required by law to retain in its possession; (iii) all governmental permits and other governmental authorizations that the Seller is required by law to retain in its possession (iv) all cash on hand, cash equivalents, investments and bank accounts of the Seller at policies of insurance of Distribution (including, as a matter of clarification, those of USF) with respect to the Closing Date other than products, properties, assets, operations and Business of Distribution, including any policies of insurance maintained for purposes of providing benefits such as workers' compensation and employers' liability coverage (except for claims under such insurance policies to the extent such claims are covered by the procedures specified in Section 7.9); (g) except as set forth in Section 1.1(1Sections 7.3(h), 7.3(i), 7.3(j) above, (vand 7.3(k) all claims assets related to any USF Employee Benefit Plan or Vivendi Employee Benefit Plan; (h) the pieces of ground, together with the buildings and improvements thereon, and all easements, rights and privileges appurtenant thereto, for the refund of Taxes and other governmental charges of whatever nature, (vi) that certain real property lease by and between Seller and MSAC Limited (relating to 00000 Xxxxxxxx Xxxxxx, Country Club Hills, Illinois 60478, having a commencement date of February 18, 2006) (the “Country Club Hills Property”), (vii) subject to Section 1.10 hereof, those certain assets located at the Country Club Hills Property corner of Texas and Metcalf Streets, Thomasville, Georgia and for the real property commonxx xxxxn as specified on Schedule 1.3(b1828 Metcalf Avenue, Thomasville, Georgia; (i) the Thomasxxxxx, Xxxxxxx xxxxxx facility and the related personal property and leases for real and personal property associated therewith; (the “Country Club Hills Inventory”), (viiij) all rights, title and interest in and of the rights of Distribution under the Contracts related to the Homsys software Receivables Purchase Facility; (including any licenses theretok) utilized by Seller in accordance with Section 7.1, all of the Reserved Names; (1) all of the rights of Distribution under the Contracts related to the disposition of its former Subsidiary, Fife Industrial Pipe Company; and (m) for the billing and collection avoidance of accounts receivable, (ix) those books, records and documents necessary for Seller and/or Fifth Third Bank to collect the Seller Receivables (including the Pledged Receivables), and (x) without in any manner limiting the foregoing, those assets listed on Schedule 1.3(c) hereto (collectivelydoubt only, the “Retained Assets”)AS400 of USF located in the data center of Distribution in Thomasville, Georgia.

Retained Assets. The Parties expressly agree that excluded Sellers and Pen Holdings hereby retain and except from the Assets sold or assigned to Buyer hereunder are (i) and the terms of this Agreement all accounts receivable arising out of or generated by the Business prior to the Closingright, whether or not reduced to a xxxx or invoice prior to the Closing (the “Seller Receivables”)title, a listing of which is attached hereto as Schedule 1.3(a); provided, further, the Parties acknowledge and agree that the Seller Receivables include the accounts receivable that have been pledged as security to Fifth Third Bank pursuant to that certain promissory note, dated February 5, 2005, by and among Fifth Third Bank and Seller (the “Pledged Receivables”); (ii) all personnel records and other records that the Seller is required by law to retain in its possession; (iii) all governmental permits and other governmental authorizations that the Seller is required by law to retain in its possession (iv) all cash on hand, cash equivalents, investments and bank accounts of the Seller at the Closing Date other than as set forth in Section 1.1(1) above, (v) all claims for the refund of Taxes and other governmental charges of whatever nature, (vi) that certain real property lease by and between Seller and MSAC Limited (relating to 00000 Xxxxxxxx Xxxxxx, Country Club Hills, Illinois 60478, having a commencement date of February 18, 2006) (the “Country Club Hills Property”), (vii) subject to Section 1.10 hereof, those certain assets located at the Country Club Hills Property as specified on Schedule 1.3(b) (the “Country Club Hills Inventory”), (viii) all rights, title and interest in and to the Homsys software (including any licenses thereto) utilized by Seller for the billing and collection of accounts receivable, (ix) those books, records and documents necessary for Seller and/or Fifth Third Bank to collect the Seller Receivables (including the Pledged Receivables), and (x) without in any manner limiting the foregoing, those following assets listed on Schedule 1.3(c) hereto (collectively, the “"Retained Assets”"): (a) all current and future improvements, structures, fixtures, and personal property and the property conveyed to Fork Creek from Glen Xxxxxxxx xx deed dated February 3, 1999, and recorded in Deed Book 2463, page 620, Kanawha County Clerk's Office (the "Andexxxx Xxxperty")., all as described on Schedule 2.2(b) hereto; (b) all agreements pertaining per se to the assets described in Subsection 2.2(a) above and/or the mining operations conducted on the Real Property by Fork Creek and which are agreements typically held by coal mining operators such as, by way of example, leases for mobile equipment, vehicles or office equipment, coal sales contracts and agreements pertaining to infrastructure located on and mining operations conducted on the Real Property. Such agreements shall include, but not be limited to, those agreements described on Schedule 2.2 (b) hereto it being acknowledged and agreed that Retained Assets shall not include any real property (other than the Andexxxx Xxxperty) or mineral estate or any easement, right-of-way, license or other agreement regarding real property ownership or rights to use real property on what is commonly referred to as the Fork Creek properties; (c) all amounts paid to any Seller prior to the Closing under the three Timber Agreements dated March 24, 2000, July 10, 2000 and November 2, 1999, respectively, each between Fork Creek and Gilbxxx-XXX Lumber Company; and (d) the

Retained Assets. The Parties expressly agree that excluded from the Assets sold or assigned to Buyer hereunder are (ia) all accounts receivable arising out of or generated by the Business prior to the Closing, whether or not reduced to a xxxx or invoice prior to the Closing (the “Seller Receivables”Notwithstanding Section 2.1(a), a listing all of which is attached hereto as Schedule 1.3(a); provided, further, the Parties acknowledge and agree that the Seller Receivables include the accounts receivable that have been pledged as security to Fifth Third Bank pursuant to that certain promissory note, dated February 5, 2005, by and among Fifth Third Bank and Seller (the “Pledged Receivables”); (ii) all personnel records and other records that the Seller is required by law to retain in its possession; (iii) all governmental permits and other governmental authorizations that the Seller is required by law to retain in its possession (iv) all cash on hand, cash equivalents, investments and bank accounts of the Seller at the Closing Date other than as set forth in Section 1.1(1) above, (v) all claims for the refund of Taxes and other governmental charges of whatever nature, (vi) that certain real property lease by and between Seller and MSAC Limited (relating to 00000 Xxxxxxxx Xxxxxx, Country Club Hills, Illinois 60478, having a commencement date of February 18, 2006) (the “Country Club Hills Property”), (vii) subject to Section 1.10 hereof, those certain assets located at the Country Club Hills Property as specified on Schedule 1.3(b) (the “Country Club Hills Inventory”), (viii) all rightsSeller's right, title and interest in the following properties, assets and to rights shall be excluded from the Homsys software (including any licenses thereto) utilized by Seller for the billing and collection of accounts receivable, (ix) those books, records and documents necessary for Seller and/or Fifth Third Bank to collect the Seller Receivables (including the Pledged Receivables), and (x) without in any manner limiting the foregoing, those assets listed on Schedule 1.3(c) hereto Assets (collectively, the “"Retained Assets”"): (i) any assets and associated claims arising out of Retained Assets or Retained Liabilities; (ii) Seller's 50% interest in Cyanco a non- corporate joint venture with Degussa Corporation for producing and marketing liquid sodium cyanide ("Cyanco") including Seller's interest in Nevada Chemicals, Inc.; (iii) the office furniture, fixtures and equipment in two offices located at 8805 South Sandy Parkway xx Xxxxx, Xxxx, to be used by Cyanco; (iv) the real property located at 8805 South Sandy Xxxxxxx xx Xxxxx, Xxxx, which will be leased to Purchaser under the terms of a lease agreement to be entered into with Seller (the "Lease Agreement"), which Lease Agreement shall have an initial term of one year with Purchaser having an option to renew such term for an additional year; (v) Seller's 50% interest in West Africa Chemicals, Inc.; (vi) the first $600,000 (six hundred thousand dollars) in accounts receivables of West Africa Chemicals, Inc. as reflected on the June 30, 2000 Balance Sheet or which arise thereafter in the ordinary course of business; (vii) all contracts between Seller and a third party in which the third party is in material default or breach or is subject of bankruptcy, insolvency, or similar proceedings; (viii) any asset of Seller not used primarily in the Business and not necessary for the conduct of the Business; (ix) any asset, offset, refund, insurance proceeds, receipts and other benefits related to litigation for which Seller is retaining the liability related to such litigation; and (x) all Tax refunds or prepaid deposits as shown on the June 30, 2000 Balance Sheet as being retained by Seller.

Retained Assets. The Parties expressly agree that excluded from the Assets sold or assigned to Buyer hereunder are (ia) all accounts receivable arising out of or generated by the Business prior to the Closing, whether or not reduced to a xxxx or invoice prior to the Closing (the “Seller Receivables”Notwithstanding Section 2.1(a), a listing all of which is attached hereto as Schedule 1.3(a); provided, further, the Parties acknowledge and agree that the Seller Receivables include the accounts receivable that have been pledged as security to Fifth Third Bank pursuant to that certain promissory note, dated February 5, 2005, by and among Fifth Third Bank and Seller (the “Pledged Receivables”); (ii) all personnel records and other records that the Seller is required by law to retain in its possession; (iii) all governmental permits and other governmental authorizations that the Seller is required by law to retain in its possession (iv) all cash on hand, cash equivalents, investments and bank accounts of the Seller at the Closing Date other than as set forth in Section 1.1(1) above, (v) all claims for the refund of Taxes and other governmental charges of whatever nature, (vi) that certain real property lease by and between Seller and MSAC Limited (relating to 00000 Xxxxxxxx Xxxxxx, Country Club Hills, Illinois 60478, having a commencement date of February 18, 2006) (the “Country Club Hills Property”), (vii) subject to Section 1.10 hereof, those certain assets located at the Country Club Hills Property as specified on Schedule 1.3(b) (the “Country Club Hills Inventory”), (viii) all rightsSeller's right, title and interest in the following properties, assets and to rights shall be excluded from the Homsys software (including any licenses thereto) utilized by Seller for the billing and collection of accounts receivable, (ix) those books, records and documents necessary for Seller and/or Fifth Third Bank to collect the Seller Receivables (including the Pledged Receivables), and (x) without in any manner limiting the foregoing, those assets listed on Schedule 1.3(c) hereto Assets (collectively, the “"Retained Assets”"): (i) any assets and associated claims arising out of Retained Assets or Retained Liabilities; (ii) Seller's 50% interest in Cyanco a non- corporate joint venture with Degussa Corporation for producing and marketing liquid sodium cyanide ("Cyanco") including Seller's interest in Nevada Chemicals, Inc.; (iii) the office furniture, fixtures and equipment in two offices located at 8805 South Sandy Parkway xx Xxxxx, Xxxx, to be used by Cyanco; (iv) the real property located at 8805 South Sandx Xxxxxxx xx Xxxxx, Xxxx, which will be leased to Purchaser under the terms of a lease agreement to be entered into with Seller (the "Lease Agreement"), which Lease Agreement shall have an initial term of one year with Purchaser having an option to renew such term for an additional year; (v) Seller's 50% interest in West Africa Chemicals, Inc.; (vi) the first $600,000 (six hundred thousand dollars) in accounts receivables of West Africa Chemicals, Inc. as reflected on the June 30, 2000 Balance Sheet or which arise thereafter in the ordinary course of business; (vii) all contracts between Seller and a third party in which the third party is in material default or breach or is subject of bankruptcy, insolvency, or similar proceedings; (viii) any asset of Seller not used primarily in the Business and not necessary for the conduct of the Business; (ix) any asset, offset, refund, insurance proceeds, receipts and other benefits related to litigation for which Seller is retaining the liability related to such litigation; and (x) all Tax refunds or prepaid deposits as shown on the June 30, 2000 Balance Sheet as being retained by Seller.