Common use of Assets Not Transferred Clause in Contracts

Assets Not Transferred. The following assets, rights and properties of Seller Parties are specifically excluded from the Assets and shall be retained by Seller Parties (the "Excluded Assets"): (a) The Purchase Price and Seller Parties' rights under this Agreement; (b) Seller Entities' articles of incorporation, corporate seals, minute books, stock books and other corporate or comparable organizational records having to do with the organization and capitalization of the Seller Entities and all income Tax Returns and other records; provided, however, that copies of such Tax Returns shall be provided to Buyer at the Closing and copies of such other materials shall be provided to Buyer upon request; (c) Any Equity Securities of a Seller Entity held by another Seller Entity or Equity Securities of a Seller Entity held by such Seller Entity as treasury securities; (d) All of Seller Parties' insurance policies, contracts, credits, reserves and other sources of funding with respect to any employee benefit Plans, arrangements or agreements; (e) Seller's prepaid expenses listed or described in Section 1.2(e) of the Seller Disclosure Schedule as "Excluded" and Seller's security deposits under leases for real property constituting Excluded Liabilities and deposits with respect to utility services at the premises subject to such leases; (f) Except for the agreements described in clause (ii) of Section 1.1(d), all employment agreements to which a Seller Party is a party; and (g) All assets that are neither (i) listed or described in Section 1.1, in the Seller Disclosure Schedule, in the Financial Statements or on the Preliminary Balance Sheet, as the same may be adjusted pursuant to Section 1.6, nor (ii) used by any Seller Party in the Business.

Assets Not Transferred. The Notwithstanding anything herein to the ---------------------- contrary, the following assets, rights and properties of Seller Parties assets are specifically excluded from not included in the Assets and shall be retained by Seller Parties (the "Excluded Assets"): (a) The Purchase Price all cash and cash equivalent items (except as described in Section 2.1(m)) including, without limitation, checking accounts, bank accounts, lock box numbers, certificates of deposit, time deposits, securities, and the proceeds of accounts receivable, including uncashed checks in payment thereof, received by Seller Parties' rights under this Agreementon or prior to the Closing Date; (b) all rights, properties, and assets which have been used or held for use in connection with the Business and which shall have been transferred (including transfers by way of sale) or otherwise disposed of in the ordinary course of business prior to the Closing; (c) prepaid Taxes and rights to or claims for refunds or rebates of Taxes and other governmental charges for periods ending on or prior to the Closing Date and the benefit of net operating loss carryforwards or carrybacks, or any other credits of Seller, whether or not attributable to the Business; (d) claims or rights against third parties set forth on Schedule 2.2(d); (e) proprietary or confidential business or technical information, records and policies that relate generally to Seller Entities' articles and are not used primarily in the Business, including, without limitation, organization manuals, strategic plans and Tax records and related information; (f) subject to the limited rights granted to Buyer pursuant to the Intellectual Property Agreement, trademarks, trade names and service marks listed on Schedule 2.2(f) (the "Excluded Trademarks and Trade Names"); (g) subject to the rights granted to Buyer pursuant to the Intellectual Property Agreement, the know-how, trade secrets, processes, inventions, formulae, procedures, research records, test information, patents, copyrights, pending applications for patents and copyrights and proprietary computer programs or other software and databases set forth on Schedule 2.2(g) (the "Excluded Intellectual Property"); (h) all notes, drafts and accounts receivable or other obligations for the payment of incorporationmoney made or owed by any Affiliate of Sellers; (i) all Seller's rights in, to and under any commodity options, puts, calls, forwards or similar agreements with respect to commodities used by the Business; (j) all causes of action, claims, demands, rights and privileges against third parties that relate to any of the Excluded Assets or Excluded Liabilities, including causes of actions, claims and rights under insurance policies relating thereto; (k) Equipment used by administrative employees of Seller who are not assigned to the Business but who provide services to the Business; (l) all other assets used primarily in connection with Seller's corporate functions (including but not limited to the corporate charter, taxpayer and other identification numbers, seals, minute books, stock books and other corporate stock transfer books), whether or comparable organizational records having to do not used for the benefit of the Business; (m) all rights and assets which are used or held for use in connection with the organization and capitalization of B-2 program, the Seller Entities and all income Tax Returns and other records; S-3 program (provided, however, that copies of such Tax Returns shall the current S-3 contract with Lockheed ▇▇▇▇▇▇ at Closing will be provided converted to Buyer at an intercompany contract on substantially the Closing same terms), the A-7 program and copies of such other materials shall be provided classified programs, if any, not related to Buyer upon requestthe C-17 or V-22 programs; (cn) Any Equity Securities the equipment, tooling and fixtures used or held for use in the premises to be leased back by the Seller from the Buyer which premises are identified on Schedule 8.12 as "Containing Excluded Assets" (none of a Seller Entity held by another Seller Entity or Equity Securities of a Seller Entity held by such Seller Entity as treasury securitieswhich assets are reflected on the Statement); (do) All equipment or tooling to which the United States Government has contractual right to assert title as identified on Schedule 4.16 to the extent the Government's right to assert title does not arise out of Seller Parties' insurance policies, contracts, credits, reserves and other sources of funding with respect to any employee benefit Plans, arrangements the C-17 or agreementsV-22 programs; (ep) Seller's prepaid expenses listed or described in Section 1.2(e) the reconfigureable tool developed under Cooperative Agreement N00014-95-2-0003 between The Office of the Seller Disclosure Schedule as "Excluded" Naval Research and Seller's security deposits under leases for real property constituting Excluded Liabilities and deposits with respect Grumman Aerospace Corporation which was novated to utility services at the premises subject to such leases; (f) Except for the agreements described in clause (ii) of Section 1.1(d), all employment agreements to which a Seller Party is a partyNorthrop Grumman Corporation; and (gq) All any assets that are neither (i) listed or described in Section 1.1, in the Seller Disclosure Schedule, in the Financial Statements or on the Preliminary Balance Sheet, as the same may be adjusted pursuant to Section 1.6, nor (ii) used by any Seller Party in the Businessrabbi trust or voluntary employee's beneficiaries association.

Assets Not Transferred. The Notwithstanding anything herein to the contrary, the following assets, rights and properties of Seller Parties assets are specifically excluded from not included in the Assets and shall be retained by Seller Parties Sellers (the "Excluded Assets"): (a) The Purchase Price all cash and Seller Parties' rights under this Agreementcash equivalent items (except as described in Section 2.1(h) and except for deposits and prepaid expenses reflected on the Closing Balance Sheet and relating to Assumed Liabilities) of Sellers, including, without limitation, checking accounts, bank accounts, lock box numbers, certificates of deposit, time deposits, securities (other than the stock of Coil Company) and the proceeds of accounts receivable, including uncashed checks in payment thereof received by Sellers on or prior to the Closing Date, in each case whether or not relating to the Brownsville Business; (b) Seller Entities' articles of incorporationall rights, corporate sealsproperties, minute books, stock books and other corporate assets which have been used or comparable organizational records having to do held for use in connection with the organization Brownsville Business and capitalization which shall have been transferred (including transfers by way of sale) or otherwise disposed of prior to the Seller Entities Closing, provided such transfers and all income Tax Returns and other records; provided, however, that copies disposals shall have been in the ordinary course of such Tax Returns shall be provided to Buyer at the Closing and copies of such other materials shall be provided to Buyer upon requestbusiness; (c) Any Equity Securities rights to or claims for refunds or rebates of a Seller Entity held by another Seller Entity Taxes and other governmental charges for periods ending on or Equity Securities prior to the Closing Date and the benefit of a Seller Entity held by such Seller Entity as treasury securitiesnet operating loss carryforwards, carrybacks or other credits of Sellers, whether or not attributable to the Brownsville Business, including, without limitation, any right to or claim for refund or rebate of Coil Company or Glasmex in respect of Taxes payable in connection with the consummation of the Transactions; (d) All of Seller Parties' insurance policiesclaims or rights against third parties, contracts, credits, reserves and other sources of funding except those arising with respect to events or breaches occurring after the Closing Date under the Assigned Contracts; PROVIDED, HOWEVER, that any employee benefit Plansrights of indemnification, arrangements contribution or agreementsreimbursement that may exist under the Assigned Contracts in respect of Excluded Assets or Excluded Liabilities hereunder shall be Excluded Assets; (e) Seller's prepaid expenses listed or described except as set forth in Section 1.2(e) 2.1(h), all insurance policies and rights thereunder, including but not limited to, rights to any cancellation value as of the Seller Disclosure Schedule as "Excluded" and Seller's security deposits under leases for real property constituting Excluded Liabilities and deposits with respect to utility services at the premises subject to such leasesClosing Date; (f) Except proprietary or confidential business or technical information, records and policies that relate to any other division of either Seller, to Sellers generally or to the division of which the Brownsville Business and the Mexico Business forms a part generally, or any of either Sellers' Affiliates, including, without limitation, organization manuals and strategic plans, but subject to the provisions of the Sharing Agreement; (g) subject to the limited rights granted in Section 8.7 and pursuant to the Sharing Agreement all "MagneTek" marks, and all trademarks or service marks, trade names, slogans or other like property relating to or including the name "MagneTek," the ▇▇▇▇ "MagneTek," or any derivative thereof, and the "MagneTek" logo or any derivative thereof, the name "Energy Engineered," the "Power M" design or any derivative thereof and Sellers' proprietary computer programs or other software, including but not limited to Sellers' proprietary data bases, accounting and reporting formats, systems and procedures but excluding any software developed for and used historically by the division of NEC comprised of the Brownsville Business and the Columbus business; (h) those assets sold pursuant to that certain Asset Purchase Agreement dated as of October 31, 1994 by and among Sellers and RPI and under that certain Asset Purchase Agreement dated as of March 13, 1995 among Sellers and ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Acquisition Corp.; (i) all rights to receive payments from Alcan at the end of the 10-year period referred to in "Option 2" of the Alcan Agreement in respect of the "coil inventory" referred to in such Agreement; (j) all other assets of Sellers not expressly included in the Assets to be sold hereunder, including but not limited to assets used by Sellers or their Affiliates in other businesses of Sellers or at other locations of the same division, racks and other equipment of the PEI or Jefferson Divisions of MagneTek whether located in such divisions' facilities adjacent to the Brownsville Facility or elsewhere, and assets used primarily in connection with Sellers' corporate functions (including but not limited to the corporate charter, taxpayer and other identification numbers, seals, minute books and stock transfer book), whether or not used for the agreements described in clause (ii) benefit of Section 1.1(d), all employment agreements to which a Seller Party is a partythe Brownsville Business; and (gk) All assets any asset or right that are neither (i) listed or described in Section 1.1, in is covered by the Seller Disclosure Schedule, in the Financial Statements or on the Preliminary Balance Sheet, as the same may be adjusted pursuant to Section 1.6, nor (ii) used by any Seller Party in the BusinessSharing Agreement.

Assets Not Transferred. The Notwithstanding anything herein to the contrary, the following assets, rights and properties of Seller Parties assets are specifically excluded from not included in the Assets and shall be retained by Seller Parties Sellers (the "Excluded Assets"): (a) The Purchase Price all cash and cash equivalent items (except as described in Section 2.1(i) and (k), including, without limitation, checking accounts, bank accounts, certificates of deposit, time deposits, securities, and the proceeds of accounts receivable, including uncashed checks in payment thereof, received by either Seller Parties' rights under this Agreementon or prior to the Closing Date; PROVIDED, HOWEVER, that accounts receivable on the Closing Balance Sheet do not include any such accounts receivable as to which Seller has received proceeds, to the extent of such proceeds; (b) Seller Entities' articles of incorporationall rights, corporate sealsproperties, minute books, stock books and other corporate assets which have been used or comparable organizational records having to do held for use in connection with the organization Business and capitalization which shall have been transferred (including transfers by way of sale) or otherwise disposed of prior to the Closing, provided such transfers and disposals shall have been in the ordinary course of the Seller Entities and all income Tax Returns and other records; provided, however, that copies business of such Tax Returns shall be provided to Buyer the Business as conducted at the Closing and copies of such other materials shall be provided to Buyer upon requestdate hereof; (c) Any Equity Securities rights to or claims for refunds or rebates of a Seller Entity held by another Seller Entity Taxes and other governmental charges for periods ending on or Equity Securities prior to the Closing Date and the benefit of a Seller Entity held by such Seller Entity as treasury securitiesnet operating loss carryforwards, carrybacks or other credits of Sellers, whether or not attributable to the Business; (d) All Claims or rights against third parties arising from breaches of Seller Parties' insurance policiesany of the Assigned Contracts (other than those described in Section 2.1(m)) on or prior to the Closing Date; PROVIDED, contractsHOWEVER, creditsthat any rights of indemnification, reserves and other sources contribution or reimbursement that may exist under the Assigned Contracts in respect of funding with respect Excluded Assets or Excluded Liabilities hereunder shall also be Excluded Assets regardless of the period to any employee benefit Plans, arrangements or agreementswhich they pertain; (e) Seller's prepaid expenses listed or described except as set forth in Section 1.2(eSections 2.1(i) and 2.1(n), all insurance policies and rights thereunder, including but not limited to, rights to any cancellation value as of the Seller Disclosure Schedule as "Excluded" and Seller's security deposits under leases for real property constituting Excluded Liabilities and deposits with respect to utility services at the premises subject to such leasesClosing Date; (f) Except proprietary or confidential business or technical information, records and policies that relate generally to either Seller and are not used primarily in, held for use primarily in or otherwise primarily relating to the agreements described Business, including, without limitation, organization manuals and strategic plans; (g) subject to the limited rights granted in clause (ii) of Section 1.1(d)8.7, all employment agreements "MagneTek" marks, including any and all trademarks or service marks, trade names, slogans or other like property relating to or including the name "MagneTek," the ▇▇▇▇ MagneTek or any derivative thereof and the MagneTek logo or any derivative thereof, the name "MagneTek Controls"; and MagneTek's proprietary computer programs or other software not primarily used in the Business, including but not limited to Sellers' proprietary data bases, accounting and reporting formats, systems and procedures; (h) all Records relating to pending lawsuits (other than any included in the Assumed Liabilities) to which a either Seller Party is a partyparty and which involve the Business; and (g) All assets that are neither (i) listed all other assets used primarily in connection with the Sellers' corporate functions (including but not limited to the corporate charter, taxpayer and other identification numbers, seals, minute books and stock transfer books), whether or described in Section 1.1, in not used for the Seller Disclosure Schedule, in the Financial Statements or on the Preliminary Balance Sheet, as the same may be adjusted pursuant to Section 1.6, nor (ii) used by any Seller Party in benefit of the Business.