to the Designated Allocation shall not be deemed to be a Transferred
Asset.
Section 2.2
Excluded Assets. Notwithstanding anything herein to the contrary,
from and after the Closing, Seller and its Affiliates shall retain, and there
shall be excluded from the sale, conveyance, assignment or transfer to Buyer
hereunder, and the
46
Transferred Assets shall not include, any of the Friendco Transferred Assets
(except as set forth in Section 5.15) or the following Assets (collectively, the
"Excluded Assets"):
(A)
ALL ASSETS WITH RESPECT TO TAXES (INCLUDING DUTY AND TAX REFUNDS
AND PREPAYMENTS) AND NET OPERATING LOSSES OF SELLER OR ANY OF ITS AFFILIATES;
(B)
EXCEPT TO THE EXTENT SET FORTH IN SECTION 5.1(D), ALL TAX RETURNS
OF SELLER OR ANY OF ITS AFFILIATES AND ALL BOOKS AND RECORDS (INCLUDING WORKING
PAPERS) AND TAX SOFTWARE TO THE EXTENT DIRECTLY RELATED THERETO;
(C)
ALL INSURANCE POLICIES AND RIGHTS THEREUNDER OTHER THAN THE
INSURANCE CLAIMS;
(D)
ALL CREDITS, PREPAID EXPENSES, DEFERRED CHARGES, ADVANCE PAYMENTS,
SECURITY DEPOSITS AND PREPAID ITEMS, IN EACH CASE, ONLY TO THE EXTENT RELATED TO
ANY ASSET THAT IS NOT A TRANSFERRED ASSET;
(E)
ALL CASH AND CASH EQUIVALENTS, EXCEPT FOR THE TRANSFERRED CASH;
(F)
ALL INTERCOMPANY RECEIVABLES;
(G)
ALL CONTRACTS (INCLUDING ALL THIRD PARTY CONFIDENTIALITY
AGREEMENTS) OTHER THAN ASSIGNED CONTRACTS;
(H)
(I) ANY OWNED REAL PROPERTY THAT, AND ANY LEASE (OTHER THAN A
LEASE DESIGNATED BY BUYER AS AN ASSIGNED CONTRACT) FOR REAL PROPERTY THAT,
(A) IS VACANT, (B) CONTAINS ONLY INACTIVE HEADENDS, INACTIVE HUBSITES OR
INACTIVE OPTICAL TRANSITION NODES OR (C) IS SOLELY RESIDENTIAL IN NATURE AND
(II) THE OWNED REAL PROPERTY SET FORTH ON SCHEDULE 2.2(H) OF THE SELLER
DISCLOSURE SCHEDULE; PROVIDED, HOWEVER, THAT, FROM TIME TO TIME PRIOR TO THE
CLOSING BUT NO LATER THAN TEN BUSINESS DAYS PRIOR TO THE CLOSING, BUYER MAY
DESIGNATE ANY OTHER OWNED REAL PROPERTY TO BE INCLUDED ON SUCH SCHEDULE
2.2(H) OF THE SELLER DISCLOSURE SCHEDULE;
(I)
ALL PROGRAMMING AGREEMENTS (OTHER THAN ANY RETRANSMISSION CONSENT
AGREEMENT THAT IS AN ASSIGNED CONTRACT);
(J)
ALL ASSETS LISTED ON SCHEDULE 2.2(J) OF THE SELLER DISCLOSURE
SCHEDULE;
(K)
(I) ALL CLAIMS (AND PROCEEDS RELATED THERETO) SET FORTH ON
SCHEDULE 2.2(K) OF THE SELLER DISCLOSURE SCHEDULE RELATING TO (A) THE RIGAS
LITIGATION OR (B) THE DESIGNATED LITIGATION, (II) ALL OTHER CLAIMS (AND PROCEEDS
RELATED THERETO) THAT SELLER OR ANY OF ITS AFFILIATES MAY MAKE AFTER THE DATE
HEREOF TO THE EXTENT NOT AFFECTING ANY SPECIFIED BUSINESS (INCLUDING ANY
TRANSFERRED ASSET OR ASSUMED LIABILITY) IN ANY MATERIAL RESPECT AND (III) ANY
CLAIMS OF SELLER OR ITS AFFILIATES AGAINST SELLER OR ANY OF ITS AFFILIATES
(OTHER THAN ANY CLAIM AGAINST ANY INVESTMENT ENTITY) TO THE EXTENT NOT AFFECTING
ANY SPECIFIED BUSINESS (INCLUDING ANY TRANSFERRED ASSET OR ASSUMED LIABILITY);
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(L)
ALL PERSONNEL RECORDS, OTHER THAN THE TRANSFERRED EMPLOYEES'
RECORDS;
(M)
ALL RIGHTS IN CONNECTION WITH AND ASSETS OF THE BENEFIT PLANS;
(N)
EXCEPT FOR THE TRANSFERRED INVESTMENTS, ALL EQUITY SECURITIES OR
OTHER RIGHTS OF SELLER OR ANY OF ITS AFFILIATES IN ANY OTHER PERSON, INCLUDING