Common use of Excluded Assets and Liabilities Clause in Contracts

Excluded Assets and Liabilities. (a) Prior to the Closing, (i) the Sellers shall cause the Transferred Subsidiaries and the Indirect Subsidiaries to transfer to other Affiliates of the Sellers, without consideration, any assets owned by them which are Excluded Assets, and (ii) the Sellers shall take best efforts to ensure that no Excluded Assets are included in the Transferred Subsidiaries or the Indirect Subsidiaries at Closing. Any and all costs and expenses and other liabilities incurred in transferring ownership of the Excluded Assets from the Transferred Subsidiaries and the Indirect Subsidiaries to other Affiliates of the Sellers, including, but not limited to, applicable Taxes, recording and filing fees and preparation of transfer documents, whether incurred before or after Closing, shall be borne by Mallinckrodt UK. (b) To the extent permitted by applicable law and regardless of whether or not in any given circumstance the Sellers have complied fully with the requirements of Section 2.8(a) above, the entire beneficial interest in and to, and the risk of loss with respect to, the Excluded Assets (whether or not owned by the Transferred Subsidiaries or any of the Indirect Subsidiaries), shall, regardless of when legal title is transferred, pass to Mallinckrodt UK or its designated Affiliates at Closing as of the Effective Time. All benefits of ownership and liabilities with respect to all Excluded Assets shall be for the account of Mallinckrodt UK and its Affiliates at all times. (c) Except as set forth in Section 7.2 and Section 8.2, in the event that the legal interest in any of the Excluded Assets owned by the Transferred Subsidiaries or the Indirect Subsidiaries to be transferred or conveyed as contemplated by this Section 2.8, or any claim, right or benefit arising thereunder or resulting therefrom cannot be transferred or conveyed to another Affiliate of Mallinckrodt UK that is not a Transferred Subsidiary or Indirect Subsidiary on or prior to the Closing Date because any waiting or notice period has not expired or any consents or approvals required for such transfer or conveyance have not yet been obtained or waived, then the legal interest in such Excluded Assets shall not be transferred or conveyed unless and until such waiting period has expired or until such an approval, consent or waiver thereof is obtained. Except as set forth in Section 6.6 with respect to Competition Filings, CFIUS Filing, and the Nuclear Regulatory Filings, Mallinckrodt UK shall use, and the Buyers shall use and shall cause their Affiliates to use, all at the expense of Mallinckrodt UK and its Affiliates, commercially reasonable efforts to obtain such consents, waivers or approvals as may be necessary to complete such assignments, transfers or waivers and to obtain satisfaction of conditions to transfer as soon as practicable. Nothing in this Agreement shall be construed as an attempt to assign to any Affiliate of Mallinckrodt UK that is not a Transferred Subsidiary or Indirect Subsidiary any Excluded Assets which, as a matter of law or by the terms of any contract, engagement or commitment to which any Transferred Subsidiary or any Indirect Subsidiary is subject, is not assignable without the consent of any other party, unless such consents shall have been given or the requirement for such consent shall have been waived in writing by such other party. (d) Pending the conveyances and transfers referred to above in Section 2.8(c), the Buyers shall, or shall cause their Affiliates to, cause the relevant Transferred Subsidiary or Indirect Subsidiary to hold any such non-assignable Excluded Assets for the benefit and at the risk of Mallinckrodt UK and its Affiliates and to cooperate with Mallinckrodt UK in any lawful and reasonable arrangements designed to provide the benefits of ownership thereof to Mallinckrodt UK and its Affiliates, at the expense and for the account of Mallinckrodt UK.

Excluded Assets and Liabilities. (a) Prior to the Closing, (i) the Sellers shall cause the Transferred Subsidiaries It is understood and the Indirect Subsidiaries to transfer to other Affiliates of the Sellers, without consideration, any assets owned by them which are Excluded Assetsagreed that Purchaser is not acquiring from Seller, and (ii) the Sellers Seller shall take best efforts to ensure that no Excluded Assets are included in the Transferred Subsidiaries or the Indirect Subsidiaries at Closing. Any and all costs and expenses and other liabilities incurred in transferring retain ownership of the Excluded Assets from the Transferred Subsidiaries all right, title and the Indirect Subsidiaries to other Affiliates of the Sellers, including, but not limited to, applicable Taxes, recording and filing fees and preparation of transfer documents, whether incurred before or after Closing, shall be borne by Mallinckrodt UK. (b) To the extent permitted by applicable law and regardless of whether or not in any given circumstance the Sellers have complied fully with the requirements of Section 2.8(a) above, the entire beneficial interest in and to, and the risk of loss with respect to, the Excluded Assets (whether or not owned by the Transferred Subsidiaries or any of the Indirect Subsidiaries), shall, regardless of when legal title is transferred, pass to Mallinckrodt UK or its designated Affiliates at Closing as of the Effective Time. All benefits of ownership and liabilities with respect to i) all Excluded Assets shall be for the account of Mallinckrodt UK and its Affiliates at all times. (c) Except as Loans set forth in Section 7.2 and Section 8.2, in the event that the legal interest in any 1.2(a)(i) of the Excluded Assets owned by Seller Disclosure Letter and (ii) any property or asset which is not being transferred pursuant to Section 1.1, including (A) the Transferred Subsidiaries or the Indirect Subsidiaries to be transferred or conveyed as contemplated by this Section 2.8, existing name of Seller or any claimcombination or derivation thereof, right (B) the software set forth in Section 1.2(a)(ii)(B) of the Seller Disclosure Letter, (C) any logos, service marks, trademarks, advertising material, slogans or benefit arising thereunder or resulting therefrom cannot be transferred or conveyed to another Affiliate of Mallinckrodt UK that is not a Transferred Subsidiary or Indirect Subsidiary similar items used on or prior to the Closing Date because by Seller or Parent in connection with its business, (D) any waiting refunds, credits or notice period has not expired other assets or rights (including interest thereon or claims therefor) with respect to any Taxes paid by Seller, or for which Seller or any consents of its Affiliates are responsible under this Agreement, relating to the Assets or approvals required for such transfer the Assumed Liabilities, (E) loan, loan participations or conveyance other extensions of credit that have been classified as non-performing as of the Closing Date and any amounts recovered thereon, (F) amounts recovered on any loans, loan participations or other extensions of credit that have been charged off prior to the Closing Date, (G) the mortgage loan origination business of Seller and any assets related primarily thereto, (H) any real property owned, leased or licensed by Seller other than the Owned Real Properties or the Leased Real Properties (including any real property identified as other real estate owned (OREO) on Section 1.2(a)(ii) of the Seller Disclosure Letter), (I) any Excluded Loans, (J) any insurance policies of Seller relating to any of the Branch Offices, Assets or Employees or (K) any assets arising out of or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by Seller, any of its Affiliates or any trade or business (whether or not yet been obtained incorporated) which, together with Seller or waivedany of its Affiliates, then would be treated as a single employer under Section 414 of the legal interest in such Excluded Assets shall not be transferred Internal Revenue Code of 1986, as amended (the “Code”), or conveyed unless and until such waiting period has expired or until such Section 4001 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) (an approval“ERISA Affiliate”), consent or waiver thereof is obtained. Except except as expressly set forth in Section 6.6 with respect to Competition Filings5.1 (collectively, CFIUS Filingthe “Excluded Assets”). (b) It is understood and agreed that, except as expressly set forth in this Agreement, Purchaser shall not assume or be liable for, and the Nuclear Regulatory FilingsAssumed Liabilities shall not include, Mallinckrodt UK any of the debts, obligations or liabilities of Seller of any kind or nature whatsoever (whether or not accrued or fixed, absolute or contingent, known or unknown), and Seller shall useremain and be solely and exclusively liable with regard to such debts, liabilities and obligations, including liabilities and obligations accrued or arising prior to the close of business on the Closing Date relating to the assets, liabilities, leases and contracts, employees and their employment, and the Buyers shall use and shall cause their Affiliates to useoperation of the Branch Offices (collectively, all at the expense of Mallinckrodt UK and its Affiliates, commercially reasonable efforts to obtain such consents, waivers or approvals as may be necessary to complete such assignments, transfers or waivers and to obtain satisfaction of conditions to transfer as soon as practicable“Excluded Liabilities”). Nothing in this Agreement shall be construed as an attempt to assign Seller acknowledges that any liability under the WARN Act relating to any Affiliate of Mallinckrodt UK that is not a Transferred Subsidiary or Indirect Subsidiary any Excluded Assets which, as a matter of law or by the terms of any contract, engagement or commitment to which any Transferred Subsidiary or any Indirect Subsidiary is subject, is not assignable without the consent of any other party, unless such consents shall have been given or the requirement for such consent shall have been waived in writing by such other party. (d) Pending the conveyances and transfers referred to above in Section 2.8(c), the Buyers shall, or shall cause their Affiliates to, cause the relevant Transferred Subsidiary or Indirect Subsidiary to hold any such non-assignable Transferred Employee is an Excluded Assets for the benefit and at the risk of Mallinckrodt UK and its Affiliates and to cooperate with Mallinckrodt UK in any lawful and reasonable arrangements designed to provide the benefits of ownership thereof to Mallinckrodt UK and its Affiliates, at the expense and for the account of Mallinckrodt UKLiability.

Excluded Assets and Liabilities. Notwithstanding any provision hereof or any schedule or exhibit hereto and regardless of any disclosure to Buyer: (a) Prior Sellers will retain and not sell, convey or transfer, and the Buyer will not purchase or acquire, any right, title or interest in or to the Closingfollowing (collectively, the “Excluded Assets”): (i) Any and all rights or interest under the Sellers shall cause the Transferred Subsidiaries Stipulation and the Indirect Subsidiaries Ancillary Agreement, other than the rights in the R▇▇▇▇▇▇▇ Royalty and the Enforcement Rights related thereto, but including any right of Seller to transfer review the reasonableness of any Remediation and Reclamation activities (as defined in the Stipulation and the Ancillary Agreement), approve or object to other Affiliates such activities or the characterization or costs thereof, submit any resulting disputes or disagreements to mediation, arbitration or litigation, and enforce the results thereof, and any and all rights or interest under the Stipulation and the Ancillary Agreement to any portion of the Sellers, without consideration, any assets owned by them which are Excluded Assets, Trust Fund remaining following full completion of the Reclamation and Remediation activities on the R▇▇▇▇▇▇▇ Royalty Property; (ii) the Sellers shall take best efforts to ensure that no Excluded Assets are included in the Transferred Subsidiaries or the Indirect Subsidiaries at Closing. Any and all costs rights or interest under the Mulatos Agreements acquired by KMC pursuant to the Mulatos Agreements, other than the rights in the RTE and expenses the Enforcement Rights related thereto, but including any Seller’s right and interest in and to any portion of (A) the Kennecott Advanced Amount Promissory Note, the Kennecott IVA Promissory Note, the Kennecott Deferred Closing Payment, the Kennecott $525,000 Note, the Kennecott $225,000 Note, the Kennecott Debenture, the Guarantee, the Capital Payments and the Royalty Reserve Payments, each of which is defined in that Second Amendment Agreement dated August 21, 2001 and all of which have been satisfied or paid in full to KMC prior to the Effective Date; (B) the Security and the Security Documents, each as defined in the Kennecott Debenture; and (C) the Share Option Agreements, each of which is dated March 23, 2001, with KMC as optionee and A▇▇▇▇▇ Matter and National Gold Corporation as optionors (collectively, (but excluding the RTE and the related Enforcement Rights), the “Mulatos Obligations”); (iii) Any and all rights or interest under the Revett Agreement, other liabilities incurred than the rights in transferring ownership the Shares, the Royalty Conversion Rights and the Enforcement Rights related thereto, but including any Seller’s rights or interest in and to any portion of the Excluded Assets from promissory note (and principal and interest paid thereon) in the Transferred Subsidiaries principal amount of Five Million and No/100 Dollars (US$5,000,000) payable to Kennecott Montana by Revett and its affiliates; and (iv) If the consent of Revett to conveyance to Buyer of the Royalty Conversion Right described in Section 1.1(b) hereof is not obtained prior to Closing, the Shares, the Royalty Conversion Right and the Indirect Subsidiaries Enforcement Rights related thereto shall constitute an Excluded Asset; and all recitals, representations, warranties, covenants and obligations related to such Shares, Royalty Conversion Right and Enforcement Rights with respect to the Shares, Royalty Conversion Right and Rock Creek Royalty shall be deemed to have been stricken from this Agreement and will be null and void and a statement to that effect will be attached to this Agreement as Exhibit D. (b) Buyer is not assuming any liability, obligation or commitment of any Seller, whether known or unknown, actual or contingent, now-existing or arising with notice or lapse of time, and expressly disclaims, in whole and in part, the assumption of all such liabilities, obligations or commitments (“Excluded Liabilities”). The Excluded Liabilities include, but are not limited to, the following: (i) Any and all obligations and liabilities of any Seller relating to or arising from environmental or other Affiliates conditions of any portion of the SellersR▇▇▇▇▇▇▇ Royalty Property, the Mulatos Royalty Property or the Rock Creek Royalty Property, including, but not limited to, applicable Taxes, recording and filing fees and preparation of transfer documents, whether incurred before any responsibility to fund or after Closing, shall be borne by Mallinckrodt UK.perform Reclamation or Remediation activities as provided in the Stipulation or the Ancillary Agreement; and (bii) To Any and all obligations and liabilities of any Seller to Quadra or any predecessor or successor in interest of Quadra as to any portion of the R▇▇▇▇▇▇▇ Royalty Property or the Trust Fund or to any other entity resulting from, arising under or pursuant to the Stipulation or the Ancillary Agreement, including, but not limited to, any obligation of any Seller to review and approve or object to the Remediation and Reclamation being performed on the R▇▇▇▇▇▇▇ Royalty Property and the expenditure of funds therefor from the Trust Fund or any obligation for net proceeds of minerals or other taxes attributable to funds contributed, credited and/or accrued to the Trust Fund; and (iii) Any and all obligations and liabilities of any Seller to MON, Alamos Gold, Inc., successor by merger to National Gold Corporation (“Alamos”), or any other person or entity that relates in any manner to the obligation to sell, assign, transfer or convey, or the alleged failure to sell, assign, transfer or convey, the Continuación de Virgencita concession (“Virgencita Concession”) included in the Mulatos Royalty Property; and (iv) Any and all obligations and liabilities under the RTE for the prior or future performance of technical services pursuant to the Mulatos Agreements; and (v) Any and all obligations and liabilities of any Seller that result from or arise under any breach or violation of any obligation or representation or warranty of, or default in performance under, the Revett Agreement, the Stipulation or the Ancillary Agreement or the Mulatos Agreements. Provided, however, that Sellers shall not be responsible for any liability, obligation or commitment included in the Excluded Liabilities to the extent permitted by applicable law Buyer takes any affirmative action, without the consent of KMC, to supplement, reduce or otherwise amend the Assets that materially and regardless of whether adversely affects a Seller’s rights or not in any given circumstance the Sellers have complied fully with the requirements of Section 2.8(a) above, the entire beneficial interest in and to, and the risk of loss with respect to, the Excluded Assets (whether increases a Seller’s obligations or not owned by the Transferred Subsidiaries or any of the Indirect Subsidiaries), shall, regardless of when legal title is transferred, pass to Mallinckrodt UK or its designated Affiliates at Closing as of the Effective Time. All benefits of ownership and liabilities with respect to all Excluded Assets shall be for the account of Mallinckrodt UK and its Affiliates at all times. (c) Except as set forth in Section 7.2 and Section 8.2, in the event that the legal interest in any of the Excluded Assets owned by the Transferred Subsidiaries Liabilities. For purposes of clarification, an omission or the Indirect Subsidiaries other failure to be transferred or conveyed act, such as contemplated by this Section 2.8a waiver, or any claim, right or benefit arising thereunder or resulting therefrom cannot be transferred or conveyed to another Affiliate of Mallinckrodt UK that is not a Transferred Subsidiary or Indirect Subsidiary on or prior to the Closing Date because any waiting or notice period has not expired or any consents or approvals required for such transfer or conveyance have not yet been obtained or waived, then the legal interest in such Excluded Assets shall not be transferred or conveyed unless and until such waiting period has expired or until such constitute an approval, consent or waiver thereof is obtained. Except as set forth in Section 6.6 with respect to Competition Filings, CFIUS Filing, and “affirmative action” on the Nuclear Regulatory Filings, Mallinckrodt UK shall use, and the Buyers shall use and shall cause their Affiliates to use, all at the expense part of Mallinckrodt UK and its Affiliates, commercially reasonable efforts to obtain such consents, waivers or approvals as may be necessary to complete such assignments, transfers or waivers and to obtain satisfaction of conditions to transfer as soon as practicable. Nothing in this Agreement shall be construed as an attempt to assign to any Affiliate of Mallinckrodt UK that is not a Transferred Subsidiary or Indirect Subsidiary any Excluded Assets which, as a matter of law or by the terms of any contract, engagement or commitment to which any Transferred Subsidiary or any Indirect Subsidiary is subject, is not assignable without the consent of any other party, unless such consents shall have been given or the requirement for such consent shall have been waived in writing by such other partyBuyer. (d) Pending the conveyances and transfers referred to above in Section 2.8(c), the Buyers shall, or shall cause their Affiliates to, cause the relevant Transferred Subsidiary or Indirect Subsidiary to hold any such non-assignable Excluded Assets for the benefit and at the risk of Mallinckrodt UK and its Affiliates and to cooperate with Mallinckrodt UK in any lawful and reasonable arrangements designed to provide the benefits of ownership thereof to Mallinckrodt UK and its Affiliates, at the expense and for the account of Mallinckrodt UK.

Excluded Assets and Liabilities. (a) Prior The list of Assets described in this Agreement as being purchased is exclusive and the Parties agree that all remaining assets of ESSI and/or Seller are not to be purchased pursuant to this Agreement and shall be Excluded Assets. It is further agreed that in acquiring the Assets, Buyer is not assuming or undertaking to assume and shall have no responsibility for any liabilities whether fixed or contingent, past, present or future, or direct or indirect, arising out of or in connection with the Assets, or any other acts or omissions of ESSI and/or Seller in connection therewith prior to the ClosingClosing (collectively referred to as the "Excluded Liabilities"), including without limitation, (i) any claim arising out of or in connection with the Sellers shall cause failure by ESSI or Seller to comply with any applicable government regulation; (ii) federal, state or local tax liabilities (including any depreciation, investment tax credit recapture and rollback taxes); (iii) any claim arising out of or in connection with any Employee Plans of ESSI or Seller or with the Transferred Subsidiaries and employment by ESSI or Seller of any of its employees or any past employees or with the Indirect Subsidiaries termination of any current employees; (iv) any claim resulting from defective products or workmanship (including any recalls or returns with respect thereto) related to transfer goods or services invoiced prior to other Affiliates of the Sellers, without consideration, Closing; (v) any assets owned by them which are Excluded Assetsclaim arising from environmental liabilities, and (iivi) the Sellers shall take best efforts to ensure that no Excluded Assets are included in the Transferred Subsidiaries or the Indirect Subsidiaries at Closing. Any and all costs and expenses and other liabilities incurred in transferring ownership any claim under any provision of the Excluded Assets from the Transferred Subsidiaries and the Indirect Subsidiaries to other Affiliates of the SellersNew York Uniform Commercial Code or bulk sales law. LIMITATIONS ON WARRANTIES. EXCEPT FOR THOSE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, includingSELLER EXPRESSLY DISCLAIMS AND NEGATES AND BUYER HEREBY WAIVES, but not limited toALL OTHER REPRESENTATIONS AND WARRANTIES, applicable TaxesEXPRESS, recording and filing fees and preparation of transfer documentsIMPLIED, whether incurred before or after ClosingSTATUTORY OR OTHERWISE. AS EXAMPLES AND FOR THE AVOIDANCE OF DOUBT, shall be borne by Mallinckrodt UKBUT WITHOUT LIMITATION OF THE FOREGOING, THE ASSETS SHALL BE CONVEYED PURSUANT HERETO WITHOUT ANY WARRANTY OR REPRESENTATION WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE QUANTITY, PROFITABILITY, COLLECTIBILITY, QUALITY, CONDITION, SIZE, WEIGHT, SERVICEABILITY, CONFORMITY TO SAMPLES OR ANY OTHER ASPECT OF THE FIXTURES, EQUIPMENT OR OTHER PERSONAL PROPERTY INCLUDED AMONG THE ASSETS, ALL OF WHICH SHALL BE CONVEYED TO THE BUYER AS IS, WHERE IS, AND WITH ALL FAULTS AND DEFECTS AND IN THEIR PRESENT CONDITION AND STATE OF REPAIR AND WITHOUT ANY WARRANTIES WHATSOEVER OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE. THE BUYER ACKNOWLEDGES THAT THIS WAIVER IS CONSPICUOUS. (b) To the extent permitted by applicable law and regardless of whether or not in any given circumstance the Sellers have complied fully with the requirements of Section 2.8(a) above, the entire beneficial interest in and to, and the risk of loss with respect to, the Excluded Assets (whether or not owned by the Transferred Subsidiaries or any of the Indirect Subsidiaries), shall, regardless of when legal title is transferred, pass to Mallinckrodt UK or its designated Affiliates at Closing as of the Effective Time. All benefits of ownership and liabilities with respect to all Excluded Assets shall be for the account of Mallinckrodt UK and its Affiliates at all times. (c) Except as set forth in Section 7.2 and Section 8.2, in the event that the legal interest in any of the Excluded Assets owned by the Transferred Subsidiaries or the Indirect Subsidiaries to be transferred or conveyed as contemplated by this Section 2.8, or any claim, right or benefit arising thereunder or resulting therefrom cannot be transferred or conveyed to another Affiliate of Mallinckrodt UK that is not a Transferred Subsidiary or Indirect Subsidiary on or prior to the Closing Date because any waiting or notice period has not expired or any consents or approvals required for such transfer or conveyance have not yet been obtained or waived, then the legal interest in such Excluded Assets shall not be transferred or conveyed unless and until such waiting period has expired or until such an approval, consent or waiver thereof is obtained. Except as set forth in Section 6.6 with respect to Competition Filings, CFIUS Filing, and the Nuclear Regulatory Filings, Mallinckrodt UK shall use, and the Buyers shall use and shall cause their Affiliates to use, all at the expense of Mallinckrodt UK and its Affiliates, commercially reasonable efforts to obtain such consents, waivers or approvals as may be necessary to complete such assignments, transfers or waivers and to obtain satisfaction of conditions to transfer as soon as practicable. Nothing in this Agreement shall be construed as an attempt to assign to any Affiliate of Mallinckrodt UK that is not a Transferred Subsidiary or Indirect Subsidiary any Excluded Assets which, as a matter of law or by the terms of any contract, engagement or commitment to which any Transferred Subsidiary or any Indirect Subsidiary is subject, is not assignable without the consent of any other party, unless such consents shall have been given or the requirement for such consent shall have been waived in writing by such other party. (d) Pending the conveyances and transfers referred to above in Section 2.8(c), the Buyers shall, or shall cause their Affiliates to, cause the relevant Transferred Subsidiary or Indirect Subsidiary to hold any such non-assignable Excluded Assets for the benefit and at the risk of Mallinckrodt UK and its Affiliates and to cooperate with Mallinckrodt UK in any lawful and reasonable arrangements designed to provide the benefits of ownership thereof to Mallinckrodt UK and its Affiliates, at the expense and for the account of Mallinckrodt UK.

Excluded Assets and Liabilities. The Diagnostic Business does not include, and the Seller is not selling, assigning, transferring, or delivering, and neither Buyer is purchasing, acquiring, accepting, assuming or incurring any of the assets, properties, rights, liability or indebtedness set forth in Article 2.2 of this Agreement (collectively, the “Excluded Assets and Liabilities”), namely: (a) Prior to All cash deposited in the Closing, (i) the Sellers shall cause the Transferred Subsidiaries and the Indirect Subsidiaries to transfer to other Affiliates bank accounts of the Sellers, without consideration, any assets owned by them which are Excluded Assets, and (ii) the Sellers shall take best efforts to ensure that no Excluded Assets are included in the Transferred Subsidiaries or the Indirect Subsidiaries at Closing. Any and all costs and expenses and other liabilities incurred in transferring ownership of the Excluded Assets from the Transferred Subsidiaries and the Indirect Subsidiaries to other Affiliates of the Sellers, including, but not limited to, applicable Taxes, recording and filing fees and preparation of transfer documents, whether incurred before or after Closing, shall be borne by Mallinckrodt UK.Seller; (b) To All Accounts Receivable; (c) All Accounts Payable; (d) The contracts, assets, properties and rights other than those specifically listed under paragraph 2.1 above and specifically, but without limitation, those listed in Schedule 2.2.(d); (e) Royalty obligations accrued as of the extent permitted by applicable law Effective Date; (f) The Corporate Books and regardless Records; (g) Any and all product liability, warranty and similar claims for damages or injury to person or property, claims of whether or not in any given circumstance the Sellers have complied fully with the requirements infringement of Section 2.8(a) aboveIntellectual Property rights, the entire beneficial interest in and toemployee claims, environmental liabilities, indebtedness, and the risk of loss with respect to, the Excluded Assets (whether or not owned by the Transferred Subsidiaries or any of the Indirect Subsidiaries), shallall other liabilities, regardless of when legal title is transferredmade or asserted, pass which arise out of or are based upon any events occurring or actions taken or omitted to Mallinckrodt UK be taken by the Seller, or its designated Affiliates at Closing as otherwise arising out of or incurred in connection with the conduct of the Diagnostic Business, on or before the Effective Time. All benefits of ownership and liabilities with respect to all Excluded Assets shall be for the account of Mallinckrodt UK and its Affiliates at all times.Date; (ch) Except as set forth in Section 7.2 Any salary, wage, fringe benefit, social security and Section 8.2, in the event that the legal interest in any of the Excluded Assets owned by other payroll tax and contribution pertaining to the Transferred Subsidiaries or the Indirect Subsidiaries Employees and any agency fees (provvigioni e contribuzioni fondo Enasarco) to be transferred or conveyed as contemplated by this Section 2.8independent agents, or any claimbusiness finders (procacciatori d’affari), right or benefit arising thereunder or resulting therefrom cannot be transferred or conveyed to another Affiliate of Mallinckrodt UK that is not a Transferred Subsidiary or Indirect Subsidiary on or distributors and brokers accrued prior to the Closing Date because Effective Date; and (i) Any and all debt and liability of Seller relating to the Diagnostic Business (other than the TFR and debt for Unpaid Vacation as indicated above) which are not hereby specifically transferred to Buyer or hereby specifically assumed by Buyer, including without limitation any waiting or notice period has not expired or and all debt and liability pertaining to the ongoing negotiations with Argene S.A. (“▇▇▇▇▇▇”). The Seller shall indemnify and keep the Buyer harmless from and against any consents or approvals required for such transfer or conveyance have not yet been obtained or waivedand all debt, then the legal interest in such Excluded Assets shall not be transferred or conveyed unless and until such waiting period has expired or until such an approval, consent or waiver thereof is obtained. Except as set forth in Section 6.6 with respect to Competition Filings, CFIUS Filingliability claims, and costs relating to the Nuclear Regulatory Filings, Mallinckrodt UK shall use, Diagnostic Business (other than the TFR and debt for Unpaid Vacation as specified above) which third parties may claim or demand against the Buyers shall use Buyer and shall cause their Affiliates which arise out of or are based upon any events occurring or actions taken or omitted to use, all at the expense of Mallinckrodt UK and its Affiliates, commercially reasonable efforts to obtain such consents, waivers or approvals as may be necessary to complete such assignments, transfers or waivers and to obtain satisfaction of conditions to transfer as soon as practicable. Nothing in this Agreement shall be construed as an attempt to assign to any Affiliate of Mallinckrodt UK that is not a Transferred Subsidiary or Indirect Subsidiary any Excluded Assets which, as a matter of law or taken by the terms of any contract, engagement or commitment to which any Transferred Subsidiary or any Indirect Subsidiary is subject, is not assignable without the consent of any other party, unless such consents shall have been given or the requirement for such consent shall have been waived in writing by such other party. (d) Pending the conveyances and transfers referred to above in Section 2.8(c), the Buyers shallSeller, or shall cause their Affiliates tootherwise arising out of or incurred in connection with the conduct of the Diagnostic Business, cause on or before the relevant Transferred Subsidiary or Indirect Subsidiary to hold any such non-assignable Excluded Assets for the benefit and at the risk of Mallinckrodt UK and its Affiliates and to cooperate with Mallinckrodt UK in any lawful and reasonable arrangements designed to provide the benefits of ownership thereof to Mallinckrodt UK and its Affiliates, at the expense and for the account of Mallinckrodt UKEffective Date.

Excluded Assets and Liabilities. (a) Prior The list of Assets described in this Agreement as being purchased is pursuant to the Closingdescriptions herein and the attached Appendices and the Parties agree that all remaining assets of ESSI and/or Seller are not to be purchased pursuant to this Agreement and shall be Excluded Assets. It is further agreed that in acquiring the Assets, Buyer is not assuming or undertaking to assume and shall have no responsibility for any liabilities whether fixed or contingent, past, present or future, or direct or indirect, arising out of or in connection with the Assets, or any other acts or omissions of Seller or ESSI in connection therewith prior to the Closing (collectively referred to as the "Excluded Liabilities"), including without limitation, (i) any claim arising out of or in connection with the Sellers shall cause failure by Seller or ESSI to comply with any applicable government regulation; (ii) federal, state or local tax liabilities (including any depreciation, investment tax credit recapture and rollback taxes); (iii) any claim arising out of or in connection with any Employee Plans of Seller or ESSI or with the Transferred Subsidiaries and employment by Seller or ESSI of any of its employees or any past employees or with the Indirect Subsidiaries termination of any current employees; (iv) any claim resulting from defective products or workmanship (including any recalls or returns with respect thereto) related to transfer goods or services invoiced prior to other Affiliates of the Sellers, without consideration, Closing; (v) any assets owned by them which are Excluded Assetsclaim arising from environmental liabilities, and (iivi) the Sellers shall take best efforts to ensure that no Excluded Assets are included in the Transferred Subsidiaries or the Indirect Subsidiaries at Closing. Any and all costs and expenses and other liabilities incurred in transferring ownership any claim under any provision of the Excluded Assets from the Transferred Subsidiaries and the Indirect Subsidiaries to other Affiliates of the SellersNew York Uniform Commercial Code or bulk sales law. LIMITATIONS ON WARRANTIES. EXCEPT FOR THOSE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, includingSELLER EXPRESSLY DISCLAIMS AND NEGATES AND BUYER HEREBY WAIVES, but not limited toALL OTHER REPRESENTATIONS AND WARRANTIES, applicable TaxesEXPRESS, recording and filing fees and preparation of transfer documentsIMPLIED, whether incurred before or after ClosingSTATUTORY OR OTHERWISE. AS EXAMPLES AND FOR THE AVOIDANCE OF DOUBT, shall be borne by Mallinckrodt UKBUT WITHOUT LIMITATION OF THE FOREGOING, THE ASSETS SHALL BE CONVEYED PURSUANT HERETO WITHOUT ANY WARRANTY OR REPRESENTATION WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE QUANTITY, PROFITABILITY, COLLECTIBILITY, QUALITY, CONDITION, SIZE, WEIGHT, SERVICEABILITY, CONFORMITY TO SAMPLES OR ANY OTHER ASPECT OF THE FIXTURES, EQUIPMENT OR OTHER PERSONAL PROPERTY INCLUDED AMONG THE ASSETS, ALL OF WHICH SHALL BE CONVEYED TO THE BUYER AS IS, WHERE IS, AND WITH ALL FAULTS AND DEFECTS AND IN THEIR PRESENT CONDITION AND STATE OF REPAIR AND WITHOUT ANY WARRANTIES WHATSOEVER OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE. THE BUYER ACKNOWLEDGES THAT THIS WAIVER IS CONSPICUOUS. (b) To the extent permitted by applicable law and regardless of whether or not in any given circumstance the Sellers have complied fully with the requirements of Section 2.8(a) above, the entire beneficial interest in and to, and the risk of loss with respect to, the Excluded Assets (whether or not owned by the Transferred Subsidiaries or any of the Indirect Subsidiaries), shall, regardless of when legal title is transferred, pass to Mallinckrodt UK or its designated Affiliates at Closing as of the Effective Time. All benefits of ownership and liabilities with respect to all Excluded Assets shall be for the account of Mallinckrodt UK and its Affiliates at all times. (c) Except as set forth in Section 7.2 and Section 8.2, in the event that the legal interest in any of the Excluded Assets owned by the Transferred Subsidiaries or the Indirect Subsidiaries to be transferred or conveyed as contemplated by this Section 2.8, or any claim, right or benefit arising thereunder or resulting therefrom cannot be transferred or conveyed to another Affiliate of Mallinckrodt UK that is not a Transferred Subsidiary or Indirect Subsidiary on or prior to the Closing Date because any waiting or notice period has not expired or any consents or approvals required for such transfer or conveyance have not yet been obtained or waived, then the legal interest in such Excluded Assets shall not be transferred or conveyed unless and until such waiting period has expired or until such an approval, consent or waiver thereof is obtained. Except as set forth in Section 6.6 with respect to Competition Filings, CFIUS Filing, and the Nuclear Regulatory Filings, Mallinckrodt UK shall use, and the Buyers shall use and shall cause their Affiliates to use, all at the expense of Mallinckrodt UK and its Affiliates, commercially reasonable efforts to obtain such consents, waivers or approvals as may be necessary to complete such assignments, transfers or waivers and to obtain satisfaction of conditions to transfer as soon as practicable. Nothing in this Agreement shall be construed as an attempt to assign to any Affiliate of Mallinckrodt UK that is not a Transferred Subsidiary or Indirect Subsidiary any Excluded Assets which, as a matter of law or by the terms of any contract, engagement or commitment to which any Transferred Subsidiary or any Indirect Subsidiary is subject, is not assignable without the consent of any other party, unless such consents shall have been given or the requirement for such consent shall have been waived in writing by such other party. (d) Pending the conveyances and transfers referred to above in Section 2.8(c), the Buyers shall, or shall cause their Affiliates to, cause the relevant Transferred Subsidiary or Indirect Subsidiary to hold any such non-assignable Excluded Assets for the benefit and at the risk of Mallinckrodt UK and its Affiliates and to cooperate with Mallinckrodt UK in any lawful and reasonable arrangements designed to provide the benefits of ownership thereof to Mallinckrodt UK and its Affiliates, at the expense and for the account of Mallinckrodt UK.