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 Replacement Contract; (4) obtaining Replacement Contracts is not a condition to the Closing; and (5) if any Commingled Contract includes any group discount or similar benefit that is not assignable or transferable to Buyer, then the Replacement Contract will not include or reflect such terms. (ii) In the event a Replacement Contract is not obtained by the Closing and the Closing occurs, Sellers will, if and to the extent Buyer shall request, use commercially reasonable efforts to cooperate with Buyer in effecting a lawful and commercially reasonable arrangement under which Buyer shall receive benefits under the Commingled Contracts related to the Commingled Contract Rights of each Commingled Contract, in each case from and after the Closing, and, to the extent of the benefits received, Buyer shall pay and perform Sellers’ or their Affiliates’ obligations arising under the Commingled Contracts related to the Commingled Contract Rights of each Commingled Contract, in each case from and after the Closing in accordance with its terms. (iii) Notwithstanding anything to the contrary herein, this Agreement and the consummation of the Transaction shall not be construed as an attempt or agreement to assign any contract or rights thereunder, including any rights under a Commingled Contract, or other right, which by its terms or by Law is not assignable without the consent of a third-party or a Governmental Entity or is cancelable by a third-party in the event of an assignment, unless and until such consent shall have been obtained.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Tegna Inc), Stock Purchase Agreement (Tegna Inc)
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 Stockholders (and/or their subsidiaries), but that will remain with the Company and its Affiliates after the Closing (the “Commingled Contracts”). Sellers The Company, Parent, Merger Sub and Buyer Stockholders, as necessary, 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 Parent and the Surviving Corporation 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 Parent or the Surviving Corporation 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 Stockholder and its Affiliates thereunder, such that, subsequent to the Closing, Sellers Stockholders 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 Stockholders or any of their subsidiaries after the Closing; (2) neither Sellers Stockholders 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 Parent or the Surviving Corporation with the benefits under a Commingled Contract or with a Replacement Contract; (3) no representation, warranty or covenant of any Seller Stockholder contained in the Transaction Documents shall be breached, or deemed breached, no condition shall be deemed not satisfied, and neither Sellers Stockholders nor any of their Affiliates will have any Liability whatsoever to Buyer Parent, the Surviving Corporation, 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 Replacement Contract; (4) obtaining Replacement Contracts is not a condition to the Closing; and (5) if any Commingled Contract includes any group discount or similar benefit that is not assignable or transferable to BuyerParent or the Surviving Corporation, then the Replacement Contract will not include or reflect such terms.
(ii) In the event a Replacement Contract is not obtained by the Closing and the Closing occurs, Sellers willStockholders will cause their Affiliates to, as necessary, if and to the extent Buyer Parent shall request, use commercially reasonable efforts to cooperate with Buyer Parent in effecting a lawful and commercially reasonable arrangement under which Buyer Parent or the Surviving Corporation shall receive benefits under the Commingled Contracts related to the Commingled Contract Rights of each Commingled Contract, in each case from and after the Closing, and, to the extent of the benefits received, Buyer Parent shall pay and perform Sellers’ the Company’s or their its Affiliates’ obligations arising under the Commingled Contracts related to the Commingled Contract Rights of each Commingled Contract, in each case from and after the Closing in accordance with its terms.
(iii) Notwithstanding anything to the contrary herein, this Agreement and the consummation of the Transaction shall not be construed as an attempt or agreement to assign any contract or rights thereunder, including any rights under a Commingled Contract, or other right, which by its terms or by Law is not assignable without the consent of a third-party or a Governmental Entity or is cancelable by a third-party in the event of an assignment, unless and until such consent shall have been obtained.
Appears in 1 contract
Sources: Merger Agreement (Tegna Inc)
Commingled Contracts. (i) The Parties acknowledge that Except as may otherwise be agreed by the Company and its Affiliates are parties to certain contracts listed hereto in writing, any Contracts set forth on Schedule 6.5(b) that relate to both the operations or conduct Section 5.6 of the Business and that of other businesses of affiliates of Sellers Disclosure Schedule (and/or their subsidiaries)collectively, 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 ) will, subject to each such party’s commercially reasonable efforts efforts, be separated (or, with the unaffiliated counterparty respect to Intellectual Property Rights, 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 extent not separable and obligations related to the Business under each Commingled Contract (the “Commingled Contract Rights”)extent permitted, such that, sublicensed) effective at on or after the Closing, Buyer so that each of Seller and Purchaser will be the beneficiary of entitled to the rights and benefits and will be responsible for assume the obligations related portion of any Liabilities inuring to the their respective businesses. If any Commingled Contract Rights of such Commingled Contracts and cannot be so separated (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 thereunderor, such that, subsequent to the Closing, Sellers and their Affiliates will have no rights or Liability with respect to Intellectual Property Rights, to the extent not separable and to the extent permitted, sublicensed), then Seller and Purchaser will, and will cause each of their respective Affiliates to, take commercially reasonable efforts to cause (i) the rights and benefits associated with that portion of each Commingled Contract Rights under and in respect that relates to the business of the Acquired Companies to be enjoyed by Purchaser, (ii) the Liabilities associated with that portion of each Commingled Contract that relates to the business of the Acquired Companies to be borne by Purchaser, (iii) the rights and benefits associated with that portion of each Commingled Contract that relates to the business of Seller to be enjoyed by Seller, and (iv) the Liabilities associated with that portion of each Commingled Contract that relates to the business of Seller to be borne by Seller. Seller has made available to Purchaser a copy of each Commingled Contract (it being understood that the parties hereto will use best efforts to comply, where practicable, with any applicable confidentiality provisions contained in such Commingled Contracts; provided), howeverand the parties hereto will cooperate with each other party hereto in good faith to effect such separation. None of Seller or Purchaser, 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 respective Affiliates, will be required to expend pay 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 consideration for the benefits under a Commingled Contract or with a Replacement Contract; (3) no representationseparation other than filing, 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 Replacement Contract; (4) obtaining Replacement Contracts is not a condition to the Closing; and (5) if any Commingled Contract includes any group discount recordation or similar benefit that is not assignable or transferable to Buyerfees which, then the Replacement Contract except as otherwise provided in this Agreement, will not include or reflect such termsbe shared equally by Seller and Purchaser.
(ii) In the event a Replacement Contract is not obtained by the Closing and the Closing occurs, Sellers will, if and to the extent Buyer shall request, use commercially reasonable efforts to cooperate with Buyer in effecting a lawful and commercially reasonable arrangement under which Buyer shall receive benefits under the Commingled Contracts related to the Commingled Contract Rights of each Commingled Contract, in each case from and after the Closing, and, to the extent of the benefits received, Buyer shall pay and perform Sellers’ or their Affiliates’ obligations arising under the Commingled Contracts related to the Commingled Contract Rights of each Commingled Contract, in each case from and after the Closing in accordance with its terms.
(iii) Notwithstanding anything to the contrary herein, this Agreement and the consummation of the Transaction shall not be construed as an attempt or agreement to assign any contract or rights thereunder, including any rights under a Commingled Contract, or other right, which by its terms or by Law is not assignable without the consent of a third-party or a Governmental Entity or is cancelable by a third-party in the event of an assignment, unless and until such consent shall have been obtained.
Appears in 1 contract
Commingled Contracts. (i) The Parties Company and Investor 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 portion of the rights and will be responsible for the obligations related of which relate to the North America Enterprise Business and/or the Operating Business and a portion of the rights and obligations of which relate to the Remaining Business (each such contract, a “Commingled Contract”). The Company shall, and shall cause its Subsidiaries to, (i) notify the third party that is the counterparty to each Commingled Contract, (ii) use their respective reasonable best efforts to cause the applicable Commingled Contract Rights to be apportioned (including by obtaining the consent of such counterparty to enter into a new contract or amendment, splitting or assigning in relevant part such Commingled Contracts Contract) between (A) the North America Enterprise Business or, with respect to the Operating Transferred Business Contracts, the Operating Business, and (B) the Remaining Business, pursuant to novate which (1) the respective North America Enterprise Business will assume all of the rights and obligations related under such Commingled Contract that relate to the North America Enterprise Business, (2) the Operating Business will assume all of the rights and obligations under the Operating Transferred Business Contracts that relate to the Operating Business, and (3) the Remaining Business will assume all of the rights and obligations under such Commingled Contract that relate to the Remaining Business, and (iii) use their respective reasonable best efforts to cause the applicable counterparty to release (A) the North America Enterprise Business and/or the Operating Business from the obligations of the Remaining Business under the portion of 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 apportioned to the Closing, Sellers Remaining Business and their Affiliates will have no rights or Liability with respect to (B) the Remaining Business from the obligations of the North America Enterprise Business and/or the Operating Business under the portion of 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 apportioned to the failure to obtain any Replacement Contract or any Action commenced or threatened by or on behalf North America Enterprise Business and/or the Operating Business. For the avoidance of any Person arising out of or relating to any Commingled Contracts or the failure to obtain any Replacement Contract; doubt, this clause (4b) obtaining Replacement Contracts is not shall only apply if an Alternative Transaction Election has been made and Investor has made a condition to the Closing; and (5) if any Commingled Contract includes any group discount or similar benefit that is not assignable or transferable to Buyer, then the Replacement Contract will not include or reflect such terms.
(ii) In the event a Replacement Contract is not obtained by the Closing and the Closing occurs, Sellers will, if and to the extent Buyer shall request, use commercially reasonable efforts to cooperate with Buyer in effecting a lawful and commercially reasonable arrangement under which Buyer shall receive benefits under the Commingled Contracts related to the Commingled Contract Rights of each Commingled Contract, in each case from and after the Closing, and, to the extent of the benefits received, Buyer shall pay and perform Sellers’ or their Affiliates’ obligations arising under the Commingled Contracts related to the Commingled Contract Rights of each Commingled Contract, in each case from and after the Closing Ring-Fencing Election in accordance with its termsSection 5.7(b)(i).
(iii) Notwithstanding anything to the contrary herein, this Agreement and the consummation of the Transaction shall not be construed as an attempt or agreement to assign any contract or rights thereunder, including any rights under a Commingled Contract, or other right, which by its terms or by Law is not assignable without the consent of a third-party or a Governmental Entity or is cancelable by a third-party in the event of an assignment, unless and until such consent shall have been obtained.
Appears in 1 contract
Sources: Framework Agreement (Twilio Inc)
Commingled Contracts. (ia) The Parties Parent and Purchaser acknowledge that the Company Parent and its Affiliates (including the Transferred Entities) are parties to certain contracts listed on Schedule 6.5(bContracts (collectively, the “Commingled Contracts”) that relate in part to both (i) the operations or conduct of the Business and (ii) the operations or conduct of the Retained Businesses; provided that in no event shall Commingled Contracts include any enterprise-wide Contracts or Contracts with respect to off-the-shelf software, or Contracts the benefits of other businesses which are delivered under the Ancillary Agreements. With respect to each 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 , during the period prior to Closing and Buyer shall cooperate and use their respective commercially reasonable efforts with for six (6) months following the unaffiliated counterparty Closing, Parent, prior to the Commingled Contracts (A) to obtainClosing, through an amendmentand Purchaser and the Transferred Entities, 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 shall reasonably cooperate with Parent Bank and its Affiliates thereunderand use their reasonable best efforts, such thatto the extent reasonably within the control of Parent or its Affiliates, subsequent prior to the Closing, Sellers or Purchaser and their the Transferred Entities, after the Closing, and at no cost to Parent or its Affiliates, prior to the Closing, or Purchaser and the Transferred Entities, after the Closing, to assist Parent Bank and its Affiliates in procuring services from the counterparty or counterparties to each such Commingled Contract, which may include apportioning such Commingled Contract or assisting Parent Bank and its Affiliates with entering into a new agreement with such counterparty or counterparties, on the one hand, and Parent Bank or one or more of its Affiliates, on the other hand, pursuant to which Parent Bank and/or its Affiliates will have no rights or Liability with respect receive the applicable benefits currently available under such Commingled Contract that relate to the Commingled Contract Rights under Retained Businesses and in respect of assume the Commingled Contractsrelated burdens and obligations; provided, however, that (1) in no Replacement event shall any party be required to assign or amend, either in its entirety or in part, any Commingled Contract shall impose any Liability on Sellers that is not assignable or any of their subsidiaries cannot be amended, as applicable, by its terms without obtaining one or more consents or approvals unless such consents or approvals are obtained. Until assignment, Parent, prior to the Closing, or Purchaser and the Transferred Entities, after the Closing; , shall not amend or terminate any Commingled Contract in a manner adverse to Parent Bank or the Retained Businesses.
(2b) neither Sellers nor any of Notwithstanding anything to the contrary contained herein, subject to Section 6.9, (i) Parent Bank, Purchaser and their respective Affiliates shall be required to expend not have any money further obligation with respect to any Commingled Contract third party consents that are not obtained prior to the Closing Date and (ii) none of Parent Bank, Purchaser or Replacement Contract their respective Affiliates shall have any obligation to make any payments or remedy incur any breach under or with respect thereto Liability or offer or grant any concession or accommodation (financial or otherwise) to or commence or participate in any third-party Action in order to provide Buyer with obtain any consents or approvals of third parties or effect the benefits under a Commingled Contract transfers 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 satisfiedarrangements contemplated by this Section 6.4, and neither Sellers Parent Bank nor any of their Affiliates will its Affiliates, on the one hand, or Purchaser nor any of its Affiliates, on the other hand, shall have any Liability whatsoever to Buyer Purchaser or any of its Affiliates or Parent Bank or any of its Affiliates, based onas applicable, arising out of or relating to the failure to obtain any Replacement Contract such consents or any Action commenced or threatened by or on behalf of any Person arising out of or relating to any Commingled Contracts or approvals, and the failure to obtain receive any Replacement Contract; (4) obtaining Replacement Contracts is such consents or approvals or to effect any such transfers or arrangements shall not a be taken into account with respect to whether any condition to the Closing; and (5) if any Commingled Contract includes any group discount or similar benefit that is not assignable or transferable to Buyer, then the Replacement Contract will not include or reflect such terms.
(ii) In the event a Replacement Contract is not obtained by the Closing and the Closing occurs, Sellers will, if and to the extent Buyer shall request, use commercially reasonable efforts to cooperate with Buyer set forth in effecting a lawful and commercially reasonable arrangement under which Buyer shall receive benefits under the Commingled Contracts related to the Commingled Contract Rights of each Commingled Contract, in each case from and after the Closing, and, to the extent of the benefits received, Buyer shall pay and perform Sellers’ or their Affiliates’ obligations arising under the Commingled Contracts related to the Commingled Contract Rights of each Commingled Contract, in each case from and after the Closing in accordance with its terms.
(iii) Notwithstanding anything to the contrary herein, this Agreement and the consummation of the Transaction shall not be construed as an attempt or agreement to assign any contract or rights thereunder, including any rights under a Commingled Contract, or other right, which by its terms or by Law is not assignable without the consent of a third-party or a Governmental Entity or is cancelable by a third-party in the event of an assignment, unless and until such consent Article IX shall have been obtainedsatisfied.
Appears in 1 contract
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 Promptly after the Closing date hereof, (the “Commingled Contracts”). Sellers a) ARC and Buyer Newco shall, and 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 cause 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, in cooperation with RCAP in accordance with its obligations pursuant 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 Section 4.14 of 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 Replacement Contract; (4) obtaining Replacement Contracts is not a condition to the Closing; and (5) if any Commingled Contract includes any group discount or similar benefit that is not assignable or transferable to Buyer, then the Replacement Contract will not include or reflect such terms.
(ii) In the event a Replacement Contract is not obtained by the Closing and the Closing occurs, Sellers will, if and to the extent Buyer shall requestRCS Purchase Agreement, use commercially reasonable efforts to cooperate with Buyer in effecting identify all Commingled Contracts, provide a lawful and commercially reasonable arrangement under which Buyer shall receive benefits under the schedule of such identified Commingled Contracts related to AMH, and supplement such schedule from time to time after the initial delivery thereof if additional Commingled Contract Rights Contracts are subsequently identified by either ARC or RCAP, and (b) ARC, Newco and AMH shall, and shall cause their respective Affiliates to, together with RCAP in accordance with its obligations pursuant to Section 4.14 of the RCS Purchase Agreement, cooperate in good faith to agree upon and execute, for each Commingled Contract, a treatment of such Commingled Contract that is reasonably acceptable to AMH, ARC, Newco and RCAP, which may include (i) using commercially reasonable efforts to cause the counterparty to such Commingled Contract to enter into a new contract with RCAP or Newco, or a designee of either of them, on terms substantially similar to those contained in such Commingled Contract including with respect to pricing, in order for the applicable business of any of them to receive the applicable benefits under such Commingled Contract (each case from such new contract, a “New Contract”), (ii) if practicable, assigning to RCAP or Newco, or a designee of either of them, the benefits and after the Closing, and, obligations under such Commingled Contract as they relate to the extent applicable business of the benefits receivedany of them, Buyer shall pay or (iii) if ARC, Newco, AMH and perform Sellers’ or RCAP and their Affiliates’ obligations arising under the Commingled Contracts related respective Affiliates are not able to the obtain a New Contract with a counterparty to any such Commingled Contract Rights of each or assign such Commingled Contract, securing an alternative arrangement reasonably satisfactory to each of ARC, AMH, Newco and RCAP under which the applicable business of RCAP or Newco, as the case may be, would, in each case from compliance with Applicable Law, obtain the benefits associated with the applicable Commingled Contract such that such business would be placed in a substantially similar position as if a New Contract were executed. All fees, costs and after the Closing expenses incurred under or in connection with this Section 4.16(e) shall be borne by ARC and RCAP (in accordance with its terms.
(iii) Notwithstanding anything obligations pursuant to the contrary herein, this Agreement and the consummation Section 4.14 of the Transaction shall not be construed as an attempt or agreement to assign RCS Purchase Agreement) (other than the fees charged in the ordinary course of performance under any contract or rights thereunder, including any rights under a Commingled New Contract, or other right, which shall be borne by its terms or by Law is not assignable without the consent of a third-party or a Governmental Entity or is cancelable by a third-party in the event of an assignment, unless and until to such consent shall have been obtainedcontract).
Appears in 1 contract
Sources: Transaction Agreement (Apollo Global Management LLC)
Commingled Contracts. (ia) The Parties Buyer and Seller acknowledge that members of the Seller Group and the Company and its Affiliates Group are parties to certain contracts listed on Schedule 6.5(b(collectively, the “Commingled Contracts”) that relate in part to both (a) the operations or conduct of the Business and that (b) the operations or conduct of other the businesses of affiliates of Sellers (and/or their subsidiaries), but that will remain with the Company Seller and its Affiliates after other than the Closing Business (collectively, the “Commingled ContractsSeller Business”), including those Contracts set forth on Schedule 8.12(a)(i). Sellers Except as may be otherwise specified on Schedule 8.12(a)(ii) in respect of specific Commingled Contracts that shall be treated in a different manner, Buyer and Buyer Seller shall cooperate with each other and use their respective commercially reasonable best efforts to (i) notify the third party that is the counterparty to each Commingled Contract and, to the extent reasonably within the contractual or other ability or control of Seller or Buyer or their respective Affiliates, as the case may be, to cause the applicable Commingled Contract to be apportioned at the invoice level between the Business and the Seller Business, pursuant to which the Seller Group will assume all of the rights and obligations under such Commingled Contract that relate to the Seller Business, on the one hand, and the Company Group will assume all of the rights and obligation under such Commingled Contract that relate to the Business, on the other hand, and (ii) to the extent reasonably within the contractual or other ability or control of Seller or Buyer or their respective Affiliates, in the case of the Seller Group, to cause the applicable counterparty to release the Company Group from the obligations of the Seller Group arising after the Closing Date under the portion of the Commingled Contract apportioned to the Seller Group and, in the case of the Company Group, to cause the applicable counterparty to release the Seller Group from the obligations of the Company Group arising after the Closing Date under the portion of the Commingled Contract apportioned to the Company Group. From and after the date hereof, the parties shall take actions reasonably necessary to allocate rights and obligations under such Commingled Contracts in accordance with the unaffiliated counterparty foregoing. In no event shall any of the foregoing arrangement result in Buyer or a member of the Company Group having any responsibility for any Excluded Liability or in any member of the Seller Group having any responsibility for any Assumed Liability.
(b) For a period beginning on the date hereof and ending thirty (30) days after the Closing Date, Buyer and Seller will cooperate with each other to develop a mutually agreeable transition or separation plan with respect to any vendor agreements that are included among the Commingled Contracts. During such time period, Seller and Buyer will not take any action, and will cause their respective Affiliates (including the Company Group Members) to not take any action, in each case including engaging in any communication, written or unwritten, with the counterparties to such Contracts, to terminate or materially decrease or discontinue their use or purchase of goods and services under such Commingled Contracts with vendors without the written consent of the other party, such consent not to be unreasonably withheld. Following such time period, unless otherwise agreed pursuant to the transition or separation plan referenced above, the parties and their respective Affiliates (including the Company Group Members) may, in its or their sole discretion, terminate, or materially decrease or discontinue its or their use or purchase of goods and services under, any of such Commingled Contracts, other than the Commingled Contracts set forth on Schedule 8.12(b). With respect 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”set forth on Schedule 8.12(b), such thatany termination, effective at material decrease 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 discontinuation under each such Commingled Contract and obtain an unconditional release for the applicable Seller and its Affiliates thereunder, such that, subsequent prior to the Closing, Sellers and their Affiliates will have no rights or Liability with respect to end of the termination period specified on Schedule 8.12(b) for such Commingled Contract Rights under and in respect shall require the prior written consent of the Commingled Contractsother party; provided, however, that (1) no Replacement Contract shall impose any Liability on Sellers or any in the case 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 those 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 Contracts with a Replacement Contract; (3) no representation, warranty or covenant termination period that refers to “the full term of any Seller the agreement unless other agreement entered into,” nothing contained in the Transaction Documents this sentence shall be breached, prevent or deemed breached, no condition shall be deemed not satisfied, and neither Sellers nor any of their Affiliates will have any Liability whatsoever to limit Buyer or any of its Affiliates, based on, arising out of or relating Company Group Member from entering into a new agreement with the counterparty 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 Replacement Contract; (4) obtaining Replacement Contracts is not a condition to the Closing; and (5) if any such Commingled Contract includes any group discount or similar benefit that is not assignable or transferable to Buyer, then the Replacement Contract will not include or reflect such terms.
(ii) In the event a Replacement Contract is not obtained by the Closing and the Closing occurs, Sellers will, if and to the extent Buyer shall request, use commercially reasonable efforts to cooperate with Buyer in effecting a lawful and commercially reasonable arrangement under which Buyer shall receive benefits under the Commingled Contracts related to the Commingled Contract Rights of each Commingled Contract, in each case from and after the Closing, and, to the extent of the benefits received, Buyer shall pay and perform Sellers’ or their Affiliates’ obligations arising under the Commingled Contracts related to the Commingled Contract Rights of each Commingled Contract, in each case from and after the Closing in accordance with its terms.
(iii) Notwithstanding anything to the contrary herein, this Agreement and the consummation of the Transaction shall not be construed as an attempt or agreement to assign any contract or rights thereunder, including any rights under a Commingled Contract, or other right, which by its terms or by Law is not assignable without the consent of Seller as long as such new agreement does not result in a third-party termination of such Commingled Contract as it relates to Seller and does not increase Seller’s obligations under such Commingled Contract after giving effect to this Section 8.12 and any assignment or contribution of such Commingled Contract to a Governmental Entity or is cancelable by a third-party in the event of an assignment, unless and until such consent shall have been obtainedCompany Group Member pursuant to Article II.
Appears in 1 contract
Sources: Asset Contribution and Equity Purchase Agreement (West Corp)
Commingled Contracts. (ia) The Parties acknowledge that the Company Seller shall, and shall cause 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 Replacement Contract; (4) obtaining Replacement Contracts is not a condition to the Closing; and (5) if any Commingled Contract includes any group discount or similar benefit that is not assignable or transferable to Buyer, then the Replacement Contract will not include or reflect such terms.
(ii) In the event a Replacement Contract is not obtained by the Closing and the Closing occurs, Sellers will, if and to the extent Buyer shall requestto, use commercially reasonable efforts to cooperate with Buyer in effecting a lawful and commercially reasonable arrangement under which Buyer shall receive benefits under the identify all Commingled Contracts related and, promptly after the date hereof, provide a schedule of Commingled Contracts to the Purchaser and supplement such schedule, from time to time as additional Commingled Contract Rights of each Contracts are subsequently identified. Upon Purchaser’s request, with respect to any Commingled Contract, Seller and Purchaser shall, and shall cause their respective Affiliates to, reasonably cooperate in good faith with Purchaser’s efforts to cause the counterparty to any such Commingled Contract to enter into a new contract with Purchaser or its designee, effective as of the Closing or at the end of the relevant transition service period, if applicable, on terms substantially similar to those contained in such Commingled Contract including with respect to pricing, in order for the Business to receive the applicable benefits under such Commingled Contract (each case from such new contract (regardless of pricing terms), a “New Contract”); provided that Seller and after its Affiliates shall not be required to pay any amounts to any third party, or otherwise to incur any expense, in connection with any efforts to obtain any such New Contract.
(b) If the parties hereto are not able to obtain a New Contract with a counterparty to any such Commingled Contract prior to the Closing or at the end of the relevant transition service period, if applicable, then following the Closing or such period until the later of (A) such time as a New Contract is executed or (B) the second anniversary of the Closing, andSeller shall, and shall cause their respective Affiliates to, upon Purchaser’s request, reasonably cooperate in good faith with Purchaser’s efforts to the extent of the benefits received, Buyer shall pay cause such counterparty to enter into a New Contract; provided that Seller and perform Sellers’ or their Affiliates’ obligations arising under the Commingled Contracts related to the Commingled Contract Rights of each Commingled Contract, in each case from and after the Closing in accordance with its terms.
(iii) Notwithstanding anything to the contrary herein, this Agreement and the consummation of the Transaction Affiliates shall not be construed as an attempt or agreement required to assign pay any contract or rights thereunder, including amounts to any rights under a Commingled Contractthird party, or other rightotherwise to incur any expense, which in connection with any efforts to obtain any such New Contract
(c) Each of Seller and Purchaser shall bear its own and its Affiliate’s internal costs with respect to this Section 5.19. All third party fees, costs and expenses incurred under or in connection with this Section 5.19 shall be borne by its terms Purchaser. Any license or services fees due with respect to any New Contract shall be borne by Law is not assignable without the consent of a third-party or a Governmental Entity or is cancelable by a third-party in the event of an assignment, unless and until such consent shall have been obtainedPurchaser.
Appears in 1 contract
Commingled Contracts. Promptly after the date hereof, unless otherwise requested by Buyer with respect to any Commingled Contract, each of Seller and Buyer shall use, and shall cause their respective Affiliates to use, commercially reasonable efforts to (i) The Parties acknowledge that cause the Company counterparty to each Commingled Contract to enter into a new contract with Buyer or its designee, on terms substantially similar to those contained in such Commingled Contract, including with respect to pricing, in order for the Business to receive the applicable benefits under such Commingled Contract (each such new contract, a “New Contract”), or (ii) if practicable, assign to Buyer or its designee the benefits and its Affiliates are parties to certain contracts listed on Schedule 6.5(b) that obligations under such Commingled Contract as they relate to both the operations Business. If the parties hereto are not able to obtain a New Contract with a counterparty to any such Commingled Contract or conduct assign such Commingled Contract prior to the Closing, then (x) Seller, Buyer and their respective Affiliates shall continue, for a period of twelve (12) months following the Business Closing, to use commercially reasonable efforts to cause such counterparty to enter into a New Contract or assign to Buyer or its designee the benefits and that of other businesses of affiliates of Sellers obligations under such Commingled Contract as they relate to the Business, and (and/or their subsidiaries)y) until such time as a New Contract is executed or a Commingled Contract is so assigned, but that will remain with the Company and its Affiliates after the Closing (the “Commingled Contracts”). Sellers Seller and Buyer shall cooperate use and use shall cause their respective Affiliates to use commercially reasonable efforts to secure an alternative arrangement reasonably satisfactory to Buyer and Seller under which the Business would, in compliance with applicable Law, obtain the benefits associated with the unaffiliated counterparty applicable Commingled Contract as they relate to the Business for the term of such Commingled Contracts (A) to obtain, through an amendment, partial assignment or new contract (Contract after the Closing. Buyer will bear any related economic burden resulting from the implementation of any such arrangementalternative arrangements pursuant to this Section 7.10. To the extent permitted by applicable Law, a “Replacement Contract”Seller shall (and shall cause its Affiliates to) exercise, enforce and exploit, only at the direction and cost of and for the benefit of Buyer the respective any and all claims, rights and obligations related benefits as they relate 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, Contracts that (1) no Replacement Contract shall impose any Liability on Sellers have not yet been assigned 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 replaced with a Replacement New 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 Replacement Contract; (4) obtaining Replacement Contracts is not a condition to the Closing; and (5) if any Commingled Contract includes any group discount or similar benefit that is not assignable or transferable to Buyer, then the Replacement Contract will not include or reflect such terms.
(ii) In the event a Replacement Contract is not obtained by the Closing and the Closing occurs, Sellers will, if and to the extent Buyer shall request, use commercially reasonable efforts to cooperate with Buyer in effecting a lawful and commercially reasonable arrangement under which Buyer shall receive benefits under the Commingled Contracts related to the Commingled Contract Rights of each Commingled Contract, in each case from and after the Closing, and, to the extent of the benefits received, Buyer shall pay and perform Sellers’ or their Affiliates’ obligations arising under the Commingled Contracts related to the Commingled Contract Rights of each Commingled Contract, in each case from and after the Closing in accordance with its terms.
(iii) Notwithstanding anything to the contrary herein, this Agreement and the consummation of the Transaction shall not be construed as an attempt or agreement to assign any contract or rights thereunder, including any rights under a Commingled Contract, or other right, which by its terms or by Law is not assignable without the consent of a third-party or a Governmental Entity or is cancelable by a third-party in the event of an assignment, unless and until such consent shall have been obtained.
Appears in 1 contract
Commingled Contracts. (i) The Parties acknowledge Buyer acknowledges that the Company Seller and its Affiliates are are, as of the Execution Date, parties to certain contracts listed on Schedule 6.5(b) Contracts that relate to both the operations or conduct business of the Business Company and that of other businesses of affiliates of Sellers (and/or their subsidiaries), but that will remain with the Company Seller and its Affiliates after (other than the Closing Company) that are material to the continuing operation of the business of the Company (such Contracts, the “Commingled Contracts”). Sellers , and Buyer shall cooperate a true 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 correct list of Buyer the respective rights and obligations related to the Business under each Commingled Contract (as of the “Commingled Contract Rights”), such that, effective at or Execution Date is set forth in Section 4.6 of the Seller Disclosure Letter. Prior to the Closing and for a period of twelve months after the Closing, Seller shall, and shall cause its Affiliates to, assist Buyer, as Buyer will be the beneficiary of the rights reasonably requests, and will be responsible for the obligations related to the Commingled Contract Rights of such Commingled Contracts and use its commercially reasonable efforts (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 all at Seller and its Affiliates thereunderAffiliates’ expense) to either (a) establish replacement contracts, such thatcontract rights, subsequent to the Closingbids, Sellers and their Affiliates will have no rights purchase orders or Liability other agreements with respect to the business of the Company between the Company and any Third Party which is a counterparty to a Commingled Contract Rights (in each case as such terms are approved by Buyer in writing in advance), (b) assign the rights and obligations under and in respect such Commingled Contract exclusively related to the business of the Company to Buyer (or such person as Buyer nominates) and (c) establish reasonable and lawful arrangements designed to provide Buyer (or such person as Buyer nominates) the rights and obligations under such Commingled ContractsContract related to the business of the Company; 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 Buyer on the existing terms of the applicable Commingled Contract or at all; provided, further, that to the extent compliance with this Section 4.6 would conflict with the obligations of the parties to the Transition Services Agreement (1for 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 Replacement Contract longer be provided on the terms of the Transition Services Agreement), Buyer and Seller shall impose any Liability on Sellers discuss and agree in good faith with respect to the appropriate treatment of the relevant Commingled Contract(s) in respect of such conflict. Notwithstanding anything contained in this Section 4.6 to the contrary, none of Buyer, Seller or any of their subsidiaries after the Closing; (2) neither Sellers nor 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 money with respect to any Commingled Contract or Replacement Contract or remedy any breach under or with respect thereto litigation or offer or grant any accommodation (financial or otherwise) to any third-party in order Third Party to provide Buyer with the benefits fulfill its obligation 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 Replacement Contract; (4) obtaining Replacement Contracts is not a condition to the Closing; and (5) if any Commingled Contract includes any group discount or similar benefit that is not assignable or transferable to Buyer, then the Replacement Contract will not include or reflect such termsthis Section 4.6.
(ii) In the event a Replacement Contract is not obtained by the Closing and the Closing occurs, Sellers will, if and to the extent Buyer shall request, use commercially reasonable efforts to cooperate with Buyer in effecting a lawful and commercially reasonable arrangement under which Buyer shall receive benefits under the Commingled Contracts related to the Commingled Contract Rights of each Commingled Contract, in each case from and after the Closing, and, to the extent of the benefits received, Buyer shall pay and perform Sellers’ or their Affiliates’ obligations arising under the Commingled Contracts related to the Commingled Contract Rights of each Commingled Contract, in each case from and after the Closing in accordance with its terms.
(iii) Notwithstanding anything to the contrary herein, this Agreement and the consummation of the Transaction shall not be construed as an attempt or agreement to assign any contract or rights thereunder, including any rights under a Commingled Contract, or other right, which by its terms or by Law is not assignable without the consent of a third-party or a Governmental Entity or is cancelable by a third-party in the event of an assignment, unless and until such consent shall have been obtained.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Craft Brew Alliance, Inc.)
Commingled Contracts. (i) The Parties acknowledge that the Company Seller and its Affiliates are parties to certain contracts listed on Schedule 6.5(b) that the Commingled Contracts, which do not constitute Transferred Assets and 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”)Seller. Sellers and Buyer shall cooperate and use their respective commercially reasonable efforts with the unaffiliated counterparty Prior to the Commingled Contracts (A) to obtainClosing, through an amendment, partial assignment or new contract (any such arrangement, and for a “Replacement Contract”) for the benefit period of Buyer the respective rights and obligations related to the Business under each Commingled Contract (the “Commingled Contract Rights”), such that, effective at or 12 months after the Closing, Seller shall, and shall cause each of its Affiliates to, use commercially reasonable efforts to cooperate and assist 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 (Bwith each Party bearing its own costs incurred with respect thereto), as Buyer may reasonably request in writing, (a) to novate the respective rights enter into 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 thereunderestablish replacement contracts, such thatcontract rights, subsequent to the Closingbids, Sellers and their Affiliates will have no rights purchase orders or Liability other agreements with respect to the Business with any third party which is a counterparty to a Commingled Contract Rights on terms that are equivalent in all material respects, as applied mutatis mutandis, to those contractual rights of Seller or any of its Affiliates under and in respect of the such Commingled Contracts, (b) to assign that portion of such Commingled Contract that is Related to the Business to Buyer or its designated Affiliate or (c) to establish reasonable and lawful arrangements designed to provide Buyer or one of its Affiliates with all the rights, benefits and obligations under such Commingled Contract to the extent Related to the Business; provided, however, that Seller makes no representation or warranty that any third party shall agree to enter into any such contract, contract right, bid, purchase order or other agreement with Buyer on the existing terms of the applicable Commingled Contract or at all. Notwithstanding anything to the contrary set forth in this Section 5.18 to the contrary, (1i) no Replacement Contract shall impose any Liability on Sellers none of Seller, Buyer or any of their subsidiaries after the Closing; (2) neither Sellers nor any of their respective Affiliates shall be required to expend commence any litigation or pay money with respect to any Commingled Contract or Replacement Contract or remedy any breach under or with respect thereto or offer or grant any other accommodation (financial or otherwise) to any third-third party to fulfill its obligation under this Section 5.18 and (ii) the obligations set forth in order to provide Buyer this Section 5.18 shall not apply 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 respect to any Commingled Contracts or Contract set forth on Section 5.18 of the failure to obtain any Replacement Contract; (4) obtaining Replacement Contracts is not a condition to the Closing; and (5) if any Commingled Contract includes any group discount or similar benefit that is not assignable or transferable to Buyer, then the Replacement Contract will not include or reflect such terms.
(ii) In the event a Replacement Contract is not obtained by the Closing and the Closing occurs, Sellers will, if and to the extent Buyer Seller Disclosure Letter. Seller shall request, use commercially reasonable efforts to cooperate with Buyer in effecting a lawful and commercially reasonable arrangement under which Buyer shall receive benefits under good faith to facilitate ▇▇▇▇▇’s efforts to evaluate the Commingled Contracts related and determine the treatment thereof under this Section 5.18, including by providing reasonable information requested by Buyer regarding the underlying Commingled Contracts on a “clean team-only” basis and subject to the Commingled Contract Rights of each Commingled Contract, limitations set forth in each case from and after the Closing, and, to the extent of the benefits received, Buyer shall pay and perform Sellers’ or their Affiliates’ obligations arising under the Commingled Contracts related to the Commingled Contract Rights of each Commingled Contract, in each case from and after the Closing in accordance with its termsSection 5.2(a).
(iii) Notwithstanding anything to the contrary herein, this Agreement and the consummation of the Transaction shall not be construed as an attempt or agreement to assign any contract or rights thereunder, including any rights under a Commingled Contract, or other right, which by its terms or by Law is not assignable without the consent of a third-party or a Governmental Entity or is cancelable by a third-party in the event of an assignment, unless and until such consent shall have been obtained.
Appears in 1 contract
Sources: Share and Asset Purchase Agreement (Goodyear Tire & Rubber Co /Oh/)
Commingled Contracts. From the date of this Agreement and until the date that is twelve (12) months after the Distribution, to the extent (i) The Parties acknowledge that the Company applicable rights and its Affiliates are parties to certain contracts listed on Schedule 6.5(bobligations (or comparable services) that relate to both the operations or conduct of the Business and that of other businesses of affiliates of Sellers (and/or their subsidiaries)under any Commingled Contract, 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 extent related to the SpinCo Business or the RemainCo Business, as applicable, have not been or are not contemplated to be Transferred to the SpinCo Group or the RemainCo Group, as applicable, in accordance with Section 2.1(a) or provided to the SpinCo Group or the RemainCo Group, as applicable, pursuant to the Transition Services Agreement, (ii) replacement Contracts, contract rights, bids, purchase orders or other agreements for such Commingled Contracts Contract, to the extent related to the SpinCo Business or the RemainCo Business, as applicable, have not yet been obtained or are not contemplated to be obtained pursuant to this Agreement, and (iii) requested by SpinCo or RemainCo, as applicable, in good faith and in writing, RemainCo or SpinCo, as applicable, shall use reasonable best efforts to assist the other Party to (in each case with effect following the Distribution Effective Time): (A) to obtainestablish replacement Contracts, through an amendmentcontract rights, partial assignment bids, purchase orders 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 other agreements with respect to the SpinCo Business or the RemainCo Group, as applicable, with any Third Party which is a counterparty to such Commingled Contract; or (B) establish reasonable and lawful arrangements designed to provide the SpinCo Group or the RemainCo Group, as applicable, with the rights and obligations under such Commingled Contract Rights under and in respect of to the Commingled Contractsextent related to the SpinCo Business or the RemainCo Group, as applicable; provided, however, that (1) no Replacement neither the Company nor SpinCo makes any representation or warranty that any Third Party shall consent to any such assignment or agree to enter into any such Contract, contract right, bid, purchase order or other agreement with any member of the SpinCo Group or the RemainCo Group, as applicable, on the existing terms of the applicable Commingled Contract shall impose any Liability on Sellers or any of at all. Neither RemainCo, SpinCo, nor their subsidiaries after the Closing; (2) neither Sellers nor any of their respective Affiliates shall be required to expend any money with respect to non-de minimis unreimbursed money, commence any Commingled Contract or Replacement Contract or remedy any breach under or with respect thereto or litigation, offer or grant any non-de minimis unreimbursed accommodation (financial or otherwise) to any third-party in order Third Party or to provide Buyer with the benefits under a Commingled Contract extend 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 Replacement Contract; (4) obtaining Replacement Contracts is not a condition to the Closing; and (5) if renew any Commingled Contract includes any group discount or similar benefit that is not assignable or transferable to Buyer, then the Replacement Contract will not include or reflect such termsfulfill their obligations under this Section 2.2(b).
(ii) In the event a Replacement Contract is not obtained by the Closing and the Closing occurs, Sellers will, if and to the extent Buyer shall request, use commercially reasonable efforts to cooperate with Buyer in effecting a lawful and commercially reasonable arrangement under which Buyer shall receive benefits under the Commingled Contracts related to the Commingled Contract Rights of each Commingled Contract, in each case from and after the Closing, and, to the extent of the benefits received, Buyer shall pay and perform Sellers’ or their Affiliates’ obligations arising under the Commingled Contracts related to the Commingled Contract Rights of each Commingled Contract, in each case from and after the Closing in accordance with its terms.
(iii) Notwithstanding anything to the contrary herein, this Agreement and the consummation of the Transaction shall not be construed as an attempt or agreement to assign any contract or rights thereunder, including any rights under a Commingled Contract, or other right, which by its terms or by Law is not assignable without the consent of a third-party or a Governmental Entity or is cancelable by a third-party in the event of an assignment, unless and until such consent shall have been obtained.
Appears in 1 contract
Sources: Separation and Distribution Agreement (Avidity Biosciences, Inc.)
Commingled Contracts. With respect to each Commingled Contract, Seller Parent shall use, and cause its Affiliates to use, best endeavors to either (i) The Parties acknowledge that cause each counterparty to each Commingled Contract as promptly as practicable prior to the Company Closing to enter into stand-alone arrangements between an Acquired Company, Buyer Parent or its relevant Affiliate on the one hand, and its Affiliates are parties the counterparty to certain contracts listed such Commingled Contract on Schedule 6.5(b) that relate to both the operations or conduct other hand, in respect of the Business Interests under such Commingled Contract or (ii) assign such Commingled Contract to an Acquired Company or a Buying Entity and that of other businesses of affiliates of Sellers (and/or their subsidiaries)enter into a stand-alone arrangement between Seller Parent or its relevant Affiliate on the one hand, but that will remain with and 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 (on the “Commingled Contract Rights”)other hand, such that, effective at or after the Closing, Buyer will be the beneficiary in respect 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 Retained Business 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 Replacement Contract; (4) obtaining Replacement Contracts is not a condition to the Closing; and (5) if any Commingled Contract includes any group discount or similar benefit that is not assignable or transferable to Buyer, then the Replacement Contract will not include or reflect such terms.
(ii) In the event a Replacement Contract is not obtained by the Closing and the Closing occurs, Sellers will, if and to the extent Buyer shall request, use commercially reasonable efforts to cooperate with Buyer in effecting a lawful and commercially reasonable arrangement under which Buyer shall receive benefits under the Commingled Contracts related to the Commingled Contract Rights of each Commingled Contract, in each case from case, on substantially the same terms and conditions (except for Permitted Consent Changes) as in existence on the Put Date in respect of those respective rights and obligations (such act, the “Commingled Contract Separation”) so that, after the Closing, and, giving effect to the extent of Commingled Contract Separation, the benefits received, Buyer shall pay rights and perform Sellers’ or their Affiliates’ obligations arising applicable to the Business Interests under the Commingled Contracts related are substantially the same as those existing before giving effect to the Commingled Contract Rights Separation (except for Permitted Consent Changes). Seller Parent, its Affiliates (other than the Acquired Companies) or its Representatives shall bear any and all costs or expenses which are necessary in order to effect the Commingled Contract Separation of each Commingled Contract; provided, that Seller Parent shall not, and shall cause its Affiliates and Representatives not to, pay or offer or agree to pay any fees, costs, expenses or other sums of money in each case connection with effecting any Commingled Contract Separation other than bona fide non-recurring fees not to exceed the Consent Fee Cap. Buyer Parent shall reasonably cooperate with Seller Parent in respect of the foregoing under this Section 5.20; provided, that notwithstanding anything else to the contrary, neither Buyer Parent nor any of its Affiliates (including the Acquired Companies as from and after the Closing Date) shall have any obligation in connection with effecting any Commingled Contract Separation, and without Buyer Parent’s consent, Seller Parent shall not and shall cause its Subsidiaries not to (i) commence, defend or participate in any litigation, (ii) pay sums of money (other than payment by Seller Parent or its Subsidiaries of amounts expressly permitted in accordance with its terms.
the immediately foregoing sentence) or provide any guarantee or other consideration, (iii) Notwithstanding anything to the contrary hereinincur any other Liability, (iv) waive or amend any terms of any Commingled Contract or of this Agreement and the consummation or any other Contract to which Buyer Parent or such Affiliate is a party other than such waivers or amendments of the Transaction shall not be construed as an attempt Commingled Contracts that constitute Permitted Consent Changes or agreement (v) agree to assign any contract or rights thereunder, including any rights under a Commingled Contractundertaking, or otherwise agree to any action, that would adversely affect Buyer Parent or such Affiliate or the Business other right, which by its terms or by Law is not assignable without the consent of a third-party or a Governmental Entity or is cancelable by a third-party in the event of an assignment, unless and until such consent shall have been obtainedthan with respect to any Permitted Consent Changes.
Appears in 1 contract
Sources: Transaction Agreement (Viatris Inc)