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all other claims, rebates, payments from vendors, and refunds, by delivery of the Financial Asset <br /> Assignment Agreement; <br /> (x) Insurance proceeds and insurance awards receivable with respect to any of the <br /> Assets which arise from or relate to events occurring within the twelve (12) months immediately prior to <br /> the Closing Date; and <br /> (xi) All other assets,rights,and properties of every kind and nature,including business <br /> records(including any occupational and safety logs or assessments or audit reports relating to the Business <br /> or the Owned Real Property, information,files,correspondence(including email correspondence),records, <br /> data,plans,reports, customer lists, supplier lists,price lists,mailing lists, and all accounting or other books <br /> and records of any Seller in whatever media retained or stored), in whatever format or medium, that are <br /> owned or leased by any Seller and used, or held for use, in the Business, wherever located and whether or <br /> not reflected on the books of the Company,and the goodwill and going concern value and other intangible <br /> assets arising from or related to the Business. <br /> (b) Notwithstanding anything contained in Section 1.01(a) to the contrary, Sellers are not <br /> selling or transferring, and Buyer is not purchasing or assuming, any of the following assets, all of which <br /> shall be retained by Sellers(collectively,the"Excluded Assets"): <br /> (i) All cash,cash equivalents,and marketable securities of any Seller; <br /> (ii) The membership interests of the Company or the capital stock of ESCO <br /> Construction; <br /> (iii) The company seal,minute books,blank membership interest certificates,and other <br /> records relating to the legal organization of any Seller and returns of Taxes for Taxes accruing on or before <br /> the Closing Date, provided that upon request Buyer may have copies thereof; <br /> (iv) All employee benefit plans and rights in the assets of employee benefit plans; <br /> (v) Insurance policies of any Seller and all rights to applicable claims and proceeds <br /> thereunder,except as provided in Section 1.01(a)(x)above; <br /> (vi) The rights which accrue to each Seller under this Agreement; <br /> (vii) All Tax assets(including Tax refunds and prepayments)of any Seller; <br /> (viii) All rights to any claim of any nature available to or being pursued by any Seller <br /> with respect to the Excluded Assets and the Excluded Liabilities, whether arising by way of counterclaim <br /> or otherwise,except as provided in Section 1.01(a)(ix)above; <br /> (ix) All of the accounts receivable of the Business as of the Closing Date, along with <br /> the proceeds thereof and any security therefor(collectively, "Receivables"); <br /> (x) All assets of ESCO Construction that are not used in,related to,held for use in,or <br /> necessary for the operations or conduct of the Business; and <br /> (xi) Each of the assets of the Business listed on Schedule 1.01(b)(vii)hereto. <br /> 3 <br />