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 Xxxx 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 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 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 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 paxx xx 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 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, 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 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.