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Other Key Issues in Preparing and Negoti... > Other Key Issues in Preparing and Ne... - Pg. 318

318 Raising Capital omission by the seller. The seller, on the other hand, wants to bring as much finality to the transaction as possible to allow some degree of sleep at night. When both parties are represented by skilled negotiators, a middle ground is reached, both in general and on specific issues of actual or potential liability. The buyer's counsel will want to draft changes, covenants, representations, and warranties that are strong and absolute. The seller's counsel, on the other hand, will seek to insert phrases like "except insignificant defaults or losses that have not, or are not likely to, at any time before or after the closing, result in material loss or liability to or against the buyer," leaving some wiggle room for insignificant and nonmaterial claims. The battleground will be the indemni- fication provisions and any exceptions, carve-outs, or baskets that are created to dilute these provisions. Scope of the Assets. The typical buyer will want to specify a virtual laun- dry list of categories of assets to be purchased, but the classic seller will want to modify the list by using words like "exclusively" or "primarily." The seller may want to exclude all or most of the cash on hand from the schedule of as- sets to be transferred. In some cases, the seller may want to license some of the