IN RESPECT
THERETO AND RIGHTS THEREUNDER, REMEDIES AGAINST INFRINGEMENTS THEREOF AND RIGHTS
TO PROTECTION OF INTEREST THEREIN; AND
8
(E)
THE CUSTOMER MAILING LIST USED BY THE ACQUIRED LOCATION IN
CONNECTION WITH THE CONDUCT OF THE BUSINESS.
2.2.
EXCLUDED ASSETS.
THERE SHALL BE EXCLUDED FROM THE ACQUIRED
ASSETS TO BE SOLD AND TRANSFERRED TO BUYER HEREUNDER, AND, TO THE EXTENT IN
EXISTENCE ON THE CLOSING DATE, THE SELLER SHALL RETAIN ALL OF THE SELLER'S
RIGHT, TITLE AND INTEREST IN AND TO THE FOLLOWING ASSETS, PROPERTIES AND RIGHTS
OF THE SELLER (COLLECTIVELY, THE "EXCLUDED ASSETS"):
(A)
THE CONSIDERATION DELIVERED TO SELLER BY BUYER PURSUANT TO THIS
AGREEMENT AND ALL CHECKS RECEIVED BY THE SELLER AS OF THE CLOSING WHICH HAVE NOT
YET CLEARED OR BEEN DEPOSITED OR CASHED;
(B)
ANY ASSETS OF THE SELLER NOT USED IN THE CONDUCT OF THE BUSINESS;
(C)
ALL RIGHTS OF THE SELLER UNDER ITS LEASES OR SUBLEASES OF REAL OR
PERSONAL PROPERTY OTHER THAN THE LEASES;
(D)
ALL CLAIMS, DEPOSITS, PREPAYMENTS, REFUNDS, ENTITLEMENTS, CAUSES
OF ACTION, CHOSES IN ACTION, RIGHTS OF RECOVERY, RIGHTS OF SET OFF AND RIGHTS OF
RECOUPMENT, INCLUDING WITHOUT LIMITATION WITH RESPECT TO TAXES, WHICH SELLER MAY
HEREAFTER RECEIVE OR BE RESPONSIBLE FOR BY REASON OF ITS OWNERSHIP OF THE
ACQUIRED ASSETS PRIOR TO THE CLOSING OR WHICH HAVE ARISEN IN CONNECTION WITH THE
OPERATION OF THE ACQUIRED LOCATION BY THE SELLER PRIOR TO THE CLOSING (UNLESS
OTHERWISE ALLOCATED PURSUANT TO §2.10 OR §2.11);
(E)
ALL RIGHTS IN AND WITH RESPECT TO THE ASSETS ASSOCIATED WITH
(WHETHER IN TRUST, RESERVE, OR OTHERWISE) ALL EMPLOYEE BENEFIT PLANS OF THE
SELLER INCLUDING, WITHOUT LIMITATION, EACH EMPLOYEE PLAN;
(F)
ALL RIGHTS IN AND WITH RESPECT TO INSURANCE POLICIES OF THE
SELLER;
(G)
ALL CORPORATE, FINANCIAL (INCLUDING, WITHOUT LIMITATION, TAX),
COMPUTER, LITIGATION,
AND HUMAN RESOURCE BOOKS, RECORDS AND SYSTEMS OF THE
SELLER, INCLUDING WITHOUT LIMITATION THOSE USED IN CONNECTION WITH THE ACQUIRED
LOCATION;
(H)
ALL PERSONAL PROPERTY MADE AVAILABLE TO SELLER BY BUYER AND
ACCEPTED BY SELLER PURSUANT TO §2.1(A) ABOVE;
(I)
ALL INTELLECTUAL PROPERTY USED IN CONNECTION WITH THE OPERATIONS
OF THE ACQUIRED LOCATION, GOODWILL ASSOCIATED THEREWITH, LICENSES AND
SUBLICENSES GRANTED IN RESPECT THERETO AND RIGHTS THEREUNDER, REMEDIES AGAINST
INFRINGEMENTS THEREOF AND RIGHTS TO PROTECTION OF INTEREST THEREIN; AND
(J)
ALL RIGHTS IN AND WITH RESPECT TO THE TRANSITIONAL ASSETS.
2.3.
ASSUMPTION OF LIABILITIES.
AT THE CLOSING, BUYER WILL DELIVER
TO SELLER AN INSTRUMENT OF ASSUMPTION WHEREBY ON THE TERMS AND SUBJECT TO THE
CONDITIONS SET FORTH HEREIN AND EXCEPT AS EXCLUDED BY §2.4 HEREOF, BUYER WILL
UNDERTAKE, ASSUME, AGREE TO
9
SATISFY OR PERFORM WHEN DUE AND HOLD SELLER HARMLESS FROM AND INDEMNIFY SELLER
AGAINST THE FOLLOWING LIABILITIES OF THE SELLER (THE "ASSUMED LIABILITIES"):
(A)
ALL LIABILITIES OF THE SELLER UNDER THE LEASES INCLUDED IN THE
ACQUIRED ASSETS (OTHER THAN THOSE LIABILITIES THAT AROSE OR ACCRUED SOLELY BASED
ON ANY ACT, EVENT, OR OMISSION THAT OCCURRED PRIOR TO THE CLOSING, WHICH SHALL
IN ALL CASES BE RETAINED BY SELLER IRRESPECTIVE OF WHETHER