Commingled Contracts Clause Samples
Commingled Contracts. (i) The Parties acknowledge that the Company and its Affiliates are parties to certain contracts listed on Schedule 6.5(b) that relate to both the operations or conduct of the Business and that of other businesses of affiliates of Sellers (and/or their subsidiaries), but that will remain with the Company and its Affiliates after the Closing (the “Commingled Contracts”). Sellers and Buyer shall cooperate and use their respective commercially reasonable efforts with the unaffiliated counterparty to the Commingled Contracts (A) to obtain, through an amendment, partial assignment or new contract (any such arrangement, a “Replacement Contract”) for the benefit of Buyer the respective rights and obligations related to the Business under each Commingled Contract (the “Commingled Contract Rights”), such that, effective at or after the Closing, Buyer will be the beneficiary of the rights and will be responsible for the obligations related to the Commingled Contract Rights of such Commingled Contracts and (B) to novate the respective rights and obligations related to the Commingled Contract Rights under each such Commingled Contract and obtain an unconditional release for the applicable Seller and its Affiliates thereunder, such that, subsequent to the Closing, Sellers and their Affiliates will have no rights or Liability with respect to the Commingled Contract Rights under and in respect of the Commingled Contracts; provided, however, that (1) no Replacement Contract shall impose any Liability on Sellers or any of their subsidiaries after the Closing; (2) neither Sellers nor any of their Affiliates shall be required to expend any money with respect to any Commingled Contract or Replacement Contract or remedy any breach under or with respect thereto or offer or grant any accommodation (financial or otherwise) to any third-party in order to provide Buyer with the benefits under a Commingled Contract or with a Replacement Contract; (3) no representation, warranty or covenant of any Seller contained in the Transaction Documents shall be breached, or deemed breached, no condition shall be deemed not satisfied, and neither Sellers nor any of their Affiliates will have any Liability whatsoever to Buyer or any of its Affiliates, based on, arising out of or relating to the failure to obtain any Replacement Contract or any Action commenced or threatened by or on behalf of any Person arising out of or relating to any Commingled Contracts or the failure to obtain any Replaceme...
Commingled Contracts. Following the execution of this Agreement, each of FCB and BP shall, and shall cause each of its Subsidiaries to, use its reasonable best efforts to, in consultation with Mountain, to (a) cause the counterparties to the Commingled Contracts of FCB, BP or any of their respective Subsidiaries to enter into new Contracts with TopCo or any of its Subsidiaries in order for TopCo or such Subsidiary to receive the benefits of such Commingled Contract, (b) and if the foregoing clause (a) is not possible, assign to TopCo or any of its Subsidiaries the benefits and obligations under such Commingled Contract as they relate to the Business or (c) and if the foregoing clauses (a) and (b) are not possible, maintain an alternative arrangement with respect to such Commingled Contract in compliance with applicable Law, so that TopCo or its Subsidiaries would obtain the benefits and bear the burdens associated with the applicable Commingled Contract, to the extent the Commingled Contract relates to the Business.
Commingled Contracts. Section 3.23 of the Company Disclosure Schedules sets forth a correct and complete list of all Commingled Contracts as of the date hereof.
Commingled Contracts. Buyers acknowledge that Ultimate Parent and its Affiliates may be parties to certain Contracts (excluding all Benefit Plans) that relate to any of the Businesses, on the one hand, and the Other Businesses of Ultimate Parent and its Affiliates, on the other hand (such Contracts, the “Commingled Contracts”). Prior to the Closing and for a period of twelve (12) months after the Closing, BR Financial shall, and shall cause its respective Affiliates to, and following the Closing, the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to (a) cause the applicable Commingled Contract to be apportioned (including, if necessary, by seeking the consent of such counterparty to enter into a new contract or amendment, splitting or assigning the rights and obligations under such Commingled Contract or establishing replacement contracts, contract rights, bids, purchase orders or other agreements) with respect to the Businesses between the applicable Great American Entity (or other Person designated by the Company), and with respect to the Other Businesses between Ultimate Parent or its Affiliates, and any third party which is a counterparty to a Commingled Contract, in each case as such terms are approved by Buyers (or, after Closing, the Company) in writing in advance, and (b) to the extent the actions contemplated by the foregoing clause (a) are not achieved, establish reasonable and lawful arrangements designed to provide the Company (or such Person as the Company nominates) the rights, benefits, obligations and burdens under such Commingled Contract to the extent related to the Businesses (and effectuate the intent of clause (a) to the fullest extent permitted by Law); provided, however, that BR Financial makes no representation or warranty that any third party will agree to enter into any such Contract, contract right, bid, purchase order or other agreement with the Company on the existing terms of the applicable Commingled Contract or at all; provided, further, that, to the extent compliance with this Section 5.12 would conflict with the obligations of the parties to the Transition Services Agreement (for instance, by causing a Commingled Contract to be separated in such a way that Services (as defined in the Transition Services Agreement) to be provided under the Transition Services Agreement can no longer be provided on the terms of the Transition Services Agreement), Buyers (or, after Closing, the Company) and BR Financial shall discu...
Commingled Contracts. For a period of twelve (12) months after the Closing, each of Seller and Buyer shall, and shall cause each of their respective Affiliates to, use its reasonable best efforts to (i) cause the counterparties to any Commingled Contracts to enter into new Contracts with Buyer or its designated Affiliate, on terms no less favorable than the terms provided to Seller and its Affiliates pursuant to the applicable Commingled Contract prior to the Closing in order for Buyer or its designated Affiliate to receive the benefits of such Commingled Contract (each such new Contract, a “New Contract”) or (ii) if practicable, assign to Buyer or its designated Affiliate the benefits and obligations under such Commingled Contract as they relate to the Transferred Assets or the Assumed Liabilities. During the period ending on the earlier of (i) the date that is twelve (12) months following the Closing and (ii) such time as a New Contract is executed or such benefits and obligations under such Commingled Contract are assigned to Buyer or its designee, Seller and Buyer shall use and cause their respective Affiliates to use their reasonable best efforts to secure an alternative arrangement reasonably satisfactory to both Parties under which Buyer or its designated Affiliates would, in compliance with applicable Law, obtain the benefits associated with the applicable Commingled Contract. For the avoidance of doubt, in no event shall Seller or Buyer or any of their respective Affiliates be required to pay any additional consideration in connection with compliance with its obligations under this Section 5.12, or to commence, defend or participate in any litigation in connection therewith or to offer or grant any accommodation (financial or otherwise) to any third party in connection therewith.
Commingled Contracts. (a) For a period of twelve (12) months following the Closing, to the extent that a Contract that is not a Purchased Contract relates to the Business, the Purchaser and the Seller shall use reasonable best efforts to cooperate in any lawful and reasonable arrangement proposed by either the Purchaser or the Seller under which Purchaser shall obtain the benefits and obligations of use of any such Contract held by Seller (or its Affiliates) following the Closing to the extent such Contract relates to the Business.
(b) For a period of twelve (12) months following the Closing, to the extent that a portion of any Purchased Contract relates to the business of the Seller (excluding, for the avoidance of doubt, the Business), the Purchaser and the Seller shall use reasonable best efforts to cooperate in any lawful and reasonable arrangement proposed by either the Purchaser or the Seller under which the Seller shall obtain the benefits and obligations of use of any such portion of a Purchased Contract held by the Purchaser (or its Affiliates) following the Closing to the extent such Contract relates to the business of the Seller (excluding, for the avoidance of doubt, the Business).
Commingled Contracts. Buyer acknowledges that Seller and its Affiliates are, as of the Execution Date, parties to certain Contracts that relate to both the Business and other businesses of Seller and its Affiliates (other than the Company) that are material to the continuing operation of the Business and are set forth in Section 4.15 of the Seller Disclosure Letter (such Contracts, the “Commingled Contracts”). Prior to the Closing and for a period of 12 months after the Closing, Seller shall, and shall cause its Affiliates to, assist Buyer, as Buyer reasonably requests, and use their respective commercially reasonable efforts to either (a) establish replacement contracts, contract rights, bids, purchase orders or other agreements with respect to the Business between the Company and any third party which is a counterparty to a Commingled Contract, (b) assign the rights and obligations under such Commingled Contract Related to the Business to the Company (or such person as Buyer nominates) or (c) establish reasonable and lawful arrangements designed to provide the Company (or such person as Buyer nominates) the rights and obligations under such Commingled Contract related to the Business; provided, however, that Seller makes no representation or warranty that any third party will agree to enter into any such Contract, contract right, bid, purchase order or other agreement with the Company on the existing terms of the applicable Commingled Contract or at all. Notwithstanding anything contained in this Section 4.15 to the contrary, none of Buyer, Seller or any of their respective Affiliates shall be required to expend money (excluding the cost of Seller’s and its Affiliates’ and their respective employees’ time and efforts), commence any litigation or offer or grant any accommodation (financial or otherwise) to any third party to fulfill its obligation under this Section 4.15.
Commingled Contracts. Seller and Buyer acknowledge that Seller and its Affiliates are parties to certain contracts, excluding all Employee Benefit Plans, that relate in part to both (i) the Business and (ii) the Excluded Business, including those Contracts that are material to, and directly relate to the Company’s and its Subsidiaries’ ability to conduct the Business and are listed on Section 6.8 of the Disclosure Schedules (collectively, the “Commingled Contracts”). The Parties’ obligations with respect to any Commingled Contract relating to services to be provided by Seller under the Transition Services Agreement shall be governed by the Transition Services Agreement. For all other Commingled Contracts, Seller and/or its Affiliates will assume all of the rights and obligations under such Commingled Contract following the Closing, and Seller shall indemnify and hold harmless Buyer and its Affiliates (including the Company and the Company Subsidiaries) for all Losses resulting from Seller’s failure to perform, pay or discharge any obligations under such Commingled Contracts. For the avoidance of doubt, nothing in this Section 6.8 shall be deemed to limit or otherwise affect the indemnification obligations of Seller or the indemnification rights or claims of any Buyer Indemnified Party pursuant to Article VII.
Commingled Contracts. (a) Buyer acknowledges that the Seller Parties or their Affiliates and one or more of the Company Entities are parties to certain Contracts listed in Section 5.18(a) of the Disclosure Schedule (such Contracts, the “Commingled Contracts”), which relate to both the Business and other businesses of the Seller Parties or their Affiliates (other than the Business) and may be material to the continuing operation of the Business. Prior to the Closing and for a period of 12 months after the Closing, Parent shall, and shall cause its Affiliates to, as Buyer reasonably requests, use its commercially reasonable efforts to either (i) assist Buyer to establish replacement Contracts, contract rights, bids, purchase orders or other agreements with respect to the Business between the applicable Company Entity and any third party which is a counterparty to a Commingled Contract (in each case as such terms are approved by Buyer in writing in advance), (ii) assign the rights and obligations under such Commingled Contract exclusively related to the Business to a Company Entity or Buyer (or such person as Buyer designates) or