Common use of Acquired and Excluded Assets Clause in Contracts

Acquired and Excluded Assets. (a) Subject to the terms and conditions set forth herein, at the Closing, the Seller Parties shall sell, assign, transfer, convey and deliver to Purchaser, free and clear of all Liens other than Permitted Liens, and Purchaser shall purchase and accept from the Seller Parties, free and clear of all Liens other than Permitted Liens, all of such Seller Parties' right, title and interest in and to all of the Seller Parties' assets and properties (including the assets and properties listed in Schedule 2.1(a)(1) and the Assigned Contracts and Leases set forth in Schedule 2.1(b)), wherever located, whether real, personal or mixed, and whether a Tangible Property or Intangible Property (the "Acquired Assets"), other than the assets and properties listed on Schedule 2.1(a)(2) (the "Excluded Assets"). The Parties expressly agree and understand that the Seller Parties shall not sell, assign, transfer, convey or deliver to Purchaser any of the Excluded Assets. (b) Schedule 2.1(b) sets forth a list of Contracts that Purchaser wishes to assume and the applicable Seller Party wishes to assign to Purchaser at Closing ("Assigned Contracts and Leases"); provided, however, Purchaser may add or remove Contracts (other than the (i) KERP Letters, (ii) 2 <PAGE> agreements described in items 4 and 5 of Section 5.5(d) of the Seller Disclosure Letter, (iii) NEX Lease, (iv) RMA Holdings Guaranty and (v) Xxxxxxxxxx Agreement, none of which can be removed) from the list of Assigned Contracts and Leases on Schedule 2.1(b) until a date which is the earlier of (A) three (3) days before the date of the Auction or (B) five (5) days before the date of the hearing to consider the Sale Order ("Contract Commitment Date"). (c) If after the Contract Commitment Date, but prior to the Closing, any Party becomes aware of any Contract that is not an Assigned Contract and Lease and does not appear on the list of Other Contracts (an "Undisclosed Contract"), the discovering Party shall within two (2) Business Days notify the other Parties of such Undisclosed Contract, and Purchaser may elect, no later than two (2) Business Days prior to the Closing, to include such Undisclosed Contract as an Assigned Contract and Lease. Notwithstanding the foregoing, and subject to the Bankruptcy Code, if any Undisclosed Contract is entered into after the date of the Bidding Procedures Order and such Undisclosed Contract contains language allowing the applicable Seller Party to assign the contract to Purchaser, then such Undisclosed Contract may be assigned without the entry of a Bankruptcy Court order. 2.2

Acquired and Excluded Assets. (a) Subject to On the terms and subject to ---------------------------- the conditions set forth hereinin this Agreement, at the Closing, the Seller Parties shall, and shall cause its Subsidiaries to, sell, assign, transfer, convey and deliver to Purchaser, free and clear of all Liens other than Permitted Liens, and Purchaser shall purchase and accept from the Seller Partiesand its Subsidiaries, free and clear of all Liens other than Permitted Liens(with all Liens on the Acquired Assets attaching to the sale proceeds payable to Seller under this Agreement), all of such Seller PartiesSeller's and its Subsidiaries' right, title title, and interest in in, to and to all of under the Seller Parties' assets assets, rights and properties (including the assets and properties listed in Schedule 2.1(a)(1) and the Assigned Contracts and Leases properties, whether tangible or intangible, set forth in paragraph A on Schedule 2.1(b))1.1 (collectively, wherever located, whether real, personal or mixed, and whether a Tangible Property or Intangible Property (the "Acquired Assets"). It is agreed ------------ and acknowledged that, other than the assets Acquired Assets, the Purchaser is not acquiring or accepting any of the assets, rights and properties listed of the Seller or its Subsidiaries. All Seller's and its Subsidiaries' assets, rights and properties that are not Acquired Assets, including those items set forth in paragraph B on Schedule 2.1(a)(2) (1.1, shall be referred to herein as the "Excluded ------------ Assets"). The Parties expressly agree and understand that Purchaser shall have the Seller Parties option, which shall not sell, assign, transfer, convey or deliver to Purchaser any of the Excluded Assets. (b) Schedule 2.1(b) sets forth a list of Contracts that Purchaser wishes to assume and the applicable Seller Party wishes to assign to Purchaser at Closing ("Assigned Contracts and Leases"); provided, however, Purchaser may add or remove Contracts (other than the (i) KERP Letters, (ii) 2 <PAGE> agreements described in items 4 and 5 of Section 5.5(d) of the Seller Disclosure Letter, (iii) NEX Lease, (iv) RMA Holdings Guaranty and (v) Xxxxxxxxxx Agreement, none of which can be removed) from the list of Assigned Contracts and Leases on Schedule 2.1(b) until a date which is the earlier of (A) three (3) days before the date of the Auction or (B) five (5) days before the date of the hearing to consider the Sale Order ("Contract Commitment Date"). (c) If after the Contract Commitment Date, but prior to the Closing, any Party becomes aware of any Contract that is not an Assigned Contract and Lease and does not appear on the list of Other Contracts (an "Undisclosed Contract"), the discovering Party shall within two (2) Business Days notify the other Parties of such Undisclosed Contract, and Purchaser may elect, exercisable no later than two (2) Business Days business days prior to the ClosingClosing Date, to include exclude any assets, rights and properties from the Acquired Assets; provided, that the Purchase Price shall not be reduced as a result of such Undisclosed Contract as an Assigned Contract and Leaseexclusion. Notwithstanding the foregoing, and subject to the Bankruptcy Code, if any Undisclosed Contract is entered into after the date Upon exercise of the Bidding Procedures Order option in the preceding sentence, the assets, rights and such Undisclosed Contract contains language allowing the applicable Seller Party properties so excluded by Purchaser shall be deemed to assign the contract to Purchaser, then such Undisclosed Contract may be assigned without the entry Excluded Assets for all purposes of a Bankruptcy Court order. 2.2this Agreement.

Acquired and Excluded Assets. (a) Subject to the terms and conditions set forth herein, at the Closing, the Seller Parties Sellers shall sell, assign, transfer, convey convey, and deliver to Purchaser or Purchaser’s Designees, and Purchaser or Purchaser’s Designees shall purchase and accept from Sellers, all of Sellers’ right, title, and interest in, to and under (i) all of the Acquired Assets described on Schedule 1A hereto, wherever located, whether tangible or intangible, as the same shall exist on the Closing Date, but not including Sellers’ cash, Sellers’ accounts receivable (other than any cash or accounts receivable of the Designated Entities) or any Excluded Assets (as defined below), free and clear of all Liens Liens, other than Permitted LiensLiens or Liens referred to in Section 5.4 (a)(i), and Purchaser shall purchase and accept from (ii) all shares of capital stock of each of the Seller Parties, Designated Entities free and clear of all Liens other than Permitted Liens, all of such Seller Parties' right, title and interest in and to all . (b) All of the Seller Parties' assets and properties (including of Sellers which are not sold, assigned, transferred, conveyed or delivered pursuant to Section 2.1(a) hereof, including, without limitation, the assets and properties listed in Schedule 2.1(a)(1) and the Assigned Contracts and Leases set forth in described on Schedule 2.1(b))) of this Agreement, wherever located, whether real, personal or mixed, are expressly excluded and whether a Tangible Property or Intangible Property shall be retained by Sellers (the "Acquired Assets"), other than the assets and properties listed on Schedule 2.1(a)(2) (the "“Excluded Assets"”). The Parties Purchaser expressly agree agrees and understand understands that the Seller Parties Sellers shall not sell, assign, transfer, convey or deliver to Purchaser any of the Excluded Assets. (bc) Schedule 2.1(b) sets forth a list Notwithstanding anything to the contrary in this Agreement, and for the avoidance of Contracts that doubt, Purchaser wishes to shall not assume any contracts, liabilities or arrangements with or in respect of Cantor Xxxxxxxxxx Securities or Market Data Corporation (except where Cantor Xxxxxxxxxx Securities or Market Data Corporation are solely customers of the Acquired Business), and the applicable Seller Party wishes to assign to Purchaser at Closing ("Assigned Contracts and Leases"); providedforegoing shall constitute Excluded Assets for all purposes hereof, howeverincluding, Purchaser may add or remove Contracts (other than the (i) KERP Letters, (ii) 2 <PAGE> agreements described in items 4 and 5 of Section 5.5(d) of the Seller Disclosure Letter, (iii) NEX Lease, (iv) RMA Holdings Guaranty and (v) Xxxxxxxxxx Agreement, none of which can be removed) from the list of Assigned Contracts and Leases on Schedule 2.1(b) until a date which is the earlier of (A) three (3) days before the date of the Auction or (B) five (5) days before the date of the hearing to consider the Sale Order ("Contract Commitment Date"). (c) If after the Contract Commitment Date, but prior to the Closing, any Party becomes aware of any Contract that is not an Assigned Contract and Lease and does not appear on the list of Other Contracts (an "Undisclosed Contract")without limitation, the discovering Party shall within two (2) Business Days notify options contained in Sections 9, 10, 11, the other Parties of such Undisclosed Contract, Annexes and Purchaser may elect, no later than two (2) Business Days prior to the Closing, to include such Undisclosed Contract as an Assigned Contract and LeaseSchedules. Notwithstanding the foregoing, and subject to the Bankruptcy Code, if any Undisclosed Contract is entered into after the date of the Bidding Procedures Order and such Undisclosed Contract contains language allowing the applicable Seller Party to assign the contract to Purchaser, then such Undisclosed Contract may be assigned without the entry of a Bankruptcy Court order. 3 2.2

Acquired and Excluded Assets. (a) Subject to On the terms and subject to the ---------------------------- conditions set forth hereinin this Agreement, at the Closing, the Seller Parties shall, and shall cause its Subsidiaries to, sell, assign, transfer, convey and deliver to Purchaser, free and clear of all Liens other than Permitted Liens, and Purchaser shall purchase and accept from the Seller Partiesand its Subsidiaries, free and clear of all Liens other than Permitted Liens(with all Liens on the Acquired Assets attaching to the sale proceeds payable to Seller under this Agreement), all of such Seller PartiesSeller's and its Subsidiaries' right, title title, and interest in in, to and to all of under the Seller Parties' assets assets, rights and properties (including the assets and properties listed in Schedule 2.1(a)(1) and the Assigned Contracts and Leases properties, whether tangible or intangible, set forth in paragraph A on Schedule 2.1(b))1.1 (collectively, wherever located, whether real, personal or mixed, and whether a Tangible Property or Intangible Property (the "Acquired Assets"). It is agreed ------------ and acknowledged that, other than the assets Acquired Assets, the Purchaser is not acquiring or accepting any of the assets, rights and properties listed of the Seller or its Subsidiaries. All Seller's and its Subsidiaries' assets, rights and properties that are not Acquired Assets, including those items set forth in paragraph B on Schedule 2.1(a)(2) (1.1, shall be referred to herein as the "Excluded ------------ Assets"). The Parties expressly agree and understand that Purchaser shall have the Seller Parties option, which shall not sell, assign, transfer, convey or deliver to Purchaser any of the Excluded Assets. (b) Schedule 2.1(b) sets forth a list of Contracts that Purchaser wishes to assume and the applicable Seller Party wishes to assign to Purchaser at Closing ("Assigned Contracts and Leases"); provided, however, Purchaser may add or remove Contracts (other than the (i) KERP Letters, (ii) 2 <PAGE> agreements described in items 4 and 5 of Section 5.5(d) of the Seller Disclosure Letter, (iii) NEX Lease, (iv) RMA Holdings Guaranty and (v) Xxxxxxxxxx Agreement, none of which can be removed) from the list of Assigned Contracts and Leases on Schedule 2.1(b) until a date which is the earlier of (A) three (3) days before the date of the Auction or (B) five (5) days before the date of the hearing to consider the Sale Order ("Contract Commitment Date"). (c) If after the Contract Commitment Date, but prior to the Closing, any Party becomes aware of any Contract that is not an Assigned Contract and Lease and does not appear on the list of Other Contracts (an "Undisclosed Contract"), the discovering Party shall within two (2) Business Days notify the other Parties of such Undisclosed Contract, and Purchaser may elect, exercisable no later than two (2) Business Days business days prior to the ClosingClosing Date, to include exclude any assets, rights and properties from the Acquired Assets; provided, that the Purchase Price shall not be reduced as a result of such Undisclosed Contract as an Assigned Contract and Leaseexclusion. Notwithstanding the foregoing, and subject to the Bankruptcy Code, if any Undisclosed Contract is entered into after the date Upon exercise of the Bidding Procedures Order option in the preceding sentence, the assets, rights and such Undisclosed Contract contains language allowing the applicable Seller Party properties so excluded by Purchaser shall be deemed to assign the contract to Purchaser, then such Undisclosed Contract may be assigned without the entry Excluded Assets for all purposes of a Bankruptcy Court order. 2.2this Agreement.

Acquired and Excluded Assets. (a) Subject Pursuant to Sections 105, 363 and 365 of the Bankruptcy Code and subject to the terms and conditions set forth hereinin this Agreement, at the Closing, the Seller Parties shall, and shall cause its Subsidiaries and Affiliates to, sell, assign, transfer, convey convey, and deliver to Purchaser, free and clear of all Liens other than Permitted Liens, and Purchaser shall purchase and accept from the Seller Partiesand its Subsidiaries and Affiliates, free and clear of all Liens other than Permitted Liens(except for the Assumed Liabilities), all of such Seller PartiesSeller's and its Subsidiaries' and Affiliates' right, title title, and interest in, to and under the Assets and Properties owned or used by Seller and its Subsidiaries and Affiliates primarily in, or otherwise necessary to the operation of, the Access Business to customers located in and to all of the Seller Parties' assets and properties Footprint (including the assets and properties listed in Schedule 2.1(a)(1) and the Assigned Contracts and Leases set forth in Schedule 2.1(b))collectively, wherever located, whether real, personal or mixed, and whether a Tangible Property or Intangible Property (the "Acquired Assets"). The Acquired Assets shall include, without limitation, all Assets and Properties set forth in SCHEDULE 1.1, whether tangible or intangible as the same shall exist on the Closing Date. It is agreed and acknowledged that, (i) the Acquired Assets shall include each customer contract for customers of the Access Business located in the Footprint (except for those customer contracts that Purchaser notifies Seller in writing at or prior to Closing it will not acquire), as well as the contracts listed in SCHEDULE 1.1 for both access and hosting or other services, (ii) the Acquired Assets shall include those items of tangible personal property listed in SCHEDULE 1.1, (iii) the Acquired Assets shall not include any cash, accounts receivable or rights to tax refunds, and (iv) other than the assets Acquired Assets, the Purchaser is not acquiring or accepting any of the other Assets and properties listed on Schedule 2.1(a)(2) (Properties of the Seller or its Affiliates. All of Seller's and its Affiliates' Assets and Properties that are not Acquired Assets shall be referred to herein as the "Excluded Assets"). The Parties expressly agree and understand that the Seller Parties shall not sell, assign, transfer, convey or deliver to Purchaser any of the Excluded Assets. (b) Schedule 2.1(b) sets forth a list of Contracts that Purchaser wishes to assume and the applicable Seller Party wishes to assign to Purchaser at Closing ("Assigned Contracts and Leases"); provided, however, Purchaser may add or remove Contracts (other than the (i) KERP Letters, (ii) 2 <PAGE> agreements described in items 4 and 5 of Section 5.5(d) of the Seller Disclosure Letter, (iii) NEX Lease, (iv) RMA Holdings Guaranty and (v) Xxxxxxxxxx Agreement, none of which can be removed) from the list of Assigned Contracts and Leases on Schedule 2.1(b) until a date which is the earlier of (A) three (3) days before the date of the Auction or (B) five (5) days before the date of the hearing to consider the Sale Order ("Contract Commitment Date"). (c) If after the Contract Commitment Date, but prior to the Closing, any Party becomes aware of any Contract that is not an Assigned Contract and Lease and does not appear on the list of Other Contracts (an "Undisclosed Contract"), the discovering Party shall within two (2) Business Days notify the other Parties of such Undisclosed Contract, and Purchaser may elect, no later than two (2) Business Days prior to the Closing, to include such Undisclosed Contract as an Assigned Contract and Lease. Notwithstanding the foregoing, and subject to the Bankruptcy Code, if any Undisclosed Contract is entered into after the date of the Bidding Procedures Order and such Undisclosed Contract contains language allowing the applicable Seller Party to assign the contract to Purchaser, then such Undisclosed Contract may be assigned without the entry of a Bankruptcy Court order. 2.2.