SERVICES TO BE PROVIDED. (a) Notwithstanding anything to the contrary contained herein, other than as set forth on the applicable Schedule and subject to Sections 2.4 and 2.10 hereof, (i) the Services to be provided by SVU as Service Provider hereunder shall be limited to (A) the Services with respect to which it is listed as the Service Provider on Schedule 2 hereto, (B) as to the NAI business which Albertson’s is acquiring, the Services which SVU and its Affiliates have historically provided to the NAI-acquired business, and (C) the Services performed by SVU and its Affiliates for Albertson’s as of immediately prior to the date of the SPA; provided that any change in Services after the date of the SPA but prior to the Effective Date shall be approved by the Steering Committee, (ii) the Services to be provided by Albertson’s as Service Provider hereunder shall be limited to the Services with respect to which it is listed as the Service Provider on Schedule 2 hereto, and (iii) in no event shall the Service Provider be required to provide any other services to the Receiving Party. The parties acknowledge and agree that they have sought to identify all Services to be provided by the Service Provider under this Services Agreement on the Schedules hereto, but that if the Schedules do not include the Services performed immediately prior to the date of the SPA by the Service Provider, the parties shall cooperate after the Closing Date to amend and/or supplement the Schedules hereto from time to time to more accurately reflect such past practice; provided, however, that (i) in no event will the Service Provider be obligated to provide any Service which (A) is listed on Schedule 2 as “deleted” or indicated in any way as no longer required or (B) is indicated to be provided only on a temporary basis and such time period has lapsed, subject to the possible extension of such Service in accordance with Section 3.3, and (ii) Schedule 1 hereto sets forth the agreement of the parties with respect to procurement of goods for the Receiving Party and shall control that Service notwithstanding the past practices of the parties with respect to procurement of goods. (b) The Service Provider or its designees shall perform the Services only in a manner, scope, nature and quality (such manner, scope, nature and quality, the “Applicable Service Level”) that is, in the case of SVU as the Service Provider, the same in all material respects as the manner in which such Services were performed or to be performed by SVU and its Affiliates for Albertson’s as of immediately prior to the Date of the SPA, or, where a specific service level has been provided, as set forth in the Schedules hereto and, in the case of Albertson’s as Service Provider, in the manner described on Schedule 2. For the avoidance of doubt, any change in service levels provided by the Service Provider to itself and its Affiliates after the Date of the SPA shall not affect the Applicable Service Level to be provided to the Receiving Party pursuant to this Services Agreement. Unless otherwise set forth herein or on the applicable Schedule, the Services provided hereunder shall be used by the Receiving Party for substantially the same purposes and in substantially the same manner (including as to volume, amount, level or frequency, as applicable) as such Services were used by the Receiving Party as of immediately prior to the Date of the SPA. Notwithstanding the foregoing, the parties acknowledge and agree that (1) Albertson’s acquisition of the NAI business shall not be deemed an increase of volume, amount, level or frequency, that SVU shall provide the Services contemplated herein to the NAI business, and that SVU’s provision of services to the NAI business shall include the services historically provided by SVU or its Affiliates to NAI (or which NAI provided to itself), as well as the Services identified on Schedule 2, and (2) Albertson’s request for Services for New Stores as defined in Exhibit A shall not constitute an increase in volume, amount, level of frequency of Services. The Service Provider shall act under this Services Agreement solely as an independent contractor and not as an agent or employee of any other party or any of such party’s Affiliates. For the purposes of clarity, the parties acknowledge and agree that if and to the extent the Service Provider changes systems and processes used in the course of its business for its own account the Service Provider shall not permit such changes to degrade the Applicable Service Level. (c) The provision of Services by the Service Provider shall be subject to Article V hereof. (d) The parties have agreed to separate the Legal function of SVU and transition certain legal associates to Albertson’s over a period of up to ninety (90) days after the Effective Date (the “Legal Transition Period”). At the Effective Date, certain attorneys responsible for the provision of certain Services to Albertson’s (the “Transitioned Attorneys”) will transition to and become employed by Albertson’s at Albertson’s option. At some point during the Legal Transition Period, Albertson’s will have the option to make Qualifying Offers (as defined in the SPA) to some or all of an additional group of identified members of the SVU Legal function. During the Legal Transition Period, the parties will cooperate with respect to the transition of legal matters between them, and each of Albertson’s (but only with respect to the services provided by the Transitioned Attorneys and only to the extent historically provided to SVU) and SVU will provide legal services pursuant to Schedule 2 hereto, if needed, provided that (i) SVU may, in its discretion and at its expense, provide outside counsel (reasonably selected from a list of outside counsel used by Albertson’s prior to the Effective Date) in lieu of providing such legal services directly (it being understood that such outside counsel providing Services to Albertson’s hereunder will be acting on behalf of and as counsel for Albertson’s, and that (as between Albertson’s and SVU) Albertson’s will control the attorney-client relationship); (ii) neither party will in any case provide services with respect to commercial or other litigation that the other party has agreed to assume responsibility for, or to indemnify the other party or its Affiliates for, pursuant to the SPA (provided, however, that SVU will continue to cooperate in providing in-house litigation support (other than litigation management) to the extent historically provided by SVU to Albertson’s and Albertson’s acknowledges that during the Legal Transition Period in-house litigation support will continue to be provided to SVU by the remaining SVU legal function not hired by Albertson’s as of the Effective Date); (iii) SVU will not be responsible for providing legal services to Albertson’s in quantities that exceed the historical levels provided by SVU to Albertson’s; and (iv) each party will provide any reasonable and customary waiver of conflicts of interest or similar waiver reasonably requested by the other party or any substituted outside counsel in connection with the legal services provided pursuant to this Services Agreement, provided that no such waiver shall materially disadvantage the other party with respect to any matter handled by such counsel. Upon the elimination of legal services as Services under this Services Agreement, there will be a dollar-for-dollar reduction in the fees payable during the Initial Term equal to the salary and benefits of each employee that transfers employment to Albertson’s pursuant to a Qualifying Offer (as defined in the SPA) made in Albertson’s sole discretion, and, if necessary, the parties will execute a letter agreement confirming the reduction as soon as reasonably possible thereafter. (e) Similar to the legal transition referenced in Section 2.1(d), the parties have agreed to the elimination of additional Services originally contemplated to be provided by SVU pursuant to this Services Agreement by the employees of SVU and its Subsidiaries identified on Exhibit G. Upon the elimination of such Services from this Services Agreement, Albertson’s will receive credits against the fees payable pursuant to this Services Agreement as such credits are set forth on Exhibit G, and, if necessary, the parties will execute a letter agreement confirming the reduction as soon as reasonably practicable thereafter. (f) The parties agree to meet on or before September 20, 2013, to review the Services being provided and determine if there are any Services no longer required and which may be deleted from the Service schedules.

Appears in 3 contracts

Sources: Transition Services Agreement (Safeway Stores 42, Inc.), Transition Services Agreement (Albertsons Companies, Inc.), Transition Services Agreement (Supervalu Inc)

SERVICES TO BE PROVIDED. (a) Notwithstanding anything to the contrary contained herein, other than as set forth on the applicable Schedule and subject to Sections 2.4 and 2.10 hereof, (i) the Services to be provided by SVU as Service Provider hereunder shall be limited to (A) the Services with respect to which it is listed as the Service Provider on Schedule 2 hereto, (B) as to the NAI business which Albertson’s LLC is acquiring, the Services which SVU and its Affiliates have historically provided to the NAI-acquired business, and (C) the Services performed by SVU and its Affiliates for New Albertson’s as of immediately prior to the date of the SPA; provided that any change in Services after the date of the SPA but prior to the Effective Date shall be approved by the Steering ~~Committee,~~ Committee (ii) the Services to be provided by New Albertson’s as Service Provider hereunder shall be limited to the Services with respect to which it is listed as the Service Provider on Schedule 2 hereto, and (iii) in no event shall the Service Provider be required to provide any other services to the Receiving Party. The parties acknowledge and agree that they have sought to identify all Services to be provided by the Service Provider under this Services Agreement on the Schedules hereto, but that if the Schedules do not include the Services performed immediately prior to the date of the SPA by the Service Provider, the parties shall cooperate after the Closing Date to amend and/or supplement the Schedules hereto from time to time to more accurately reflect such past practice; provided, however, that (i) in no event will the Service Provider be obligated to provide any Service which (A) is listed on Schedule 2 as “deleted” or indicated in any way as no longer required or (B) is indicated to be provided only on a temporary basis and such time period has lapsed, subject to the possible extension of such Service in accordance with Section 3.3, and (ii) Schedule 1 hereto sets forth the agreement of the parties with respect to procurement of goods for the Receiving Party and shall control that Service notwithstanding the past practices of the parties with respect to procurement of goods. (b) The Service Provider or its designees shall perform the Services only in a manner, scope, nature and quality (such manner, scope, nature and quality, the “Applicable Service Level”) that is, in the case of SVU as the Service Provider, the same in all material respects as the manner in which such Services were performed or to be performed by SVU and its Affiliates for New Albertson’s as of immediately prior to the Date of the SPA, or, where a specific service level has been provided, as set forth in the Schedules hereto and, in the case of New Albertson’s as Service Provider, in the manner described on Schedule 2. For the avoidance of doubt, any change in service levels provided by the Service Provider to itself and its Affiliates after the Date of the SPA shall not affect the Applicable Service Level to be provided to the Receiving Party pursuant to this Services Agreement. Unless otherwise set forth herein or on the applicable Schedule, the Services provided hereunder shall be used by the Receiving Party for substantially the same purposes and in substantially the same manner (including as to volume, amount, level or frequency, as applicable) as such Services were used by the Receiving Party as of immediately prior to the Date of the SPA. Notwithstanding the foregoing, the parties acknowledge and agree that (1) ~~Albertson’s~~ the acquisition of the NAI business by Albertson’s LLC shall not be deemed an increase of volume, amount, level or frequency, that SVU shall provide the Services contemplated herein to the NAI business, and that SVU’s provision of services to the NAI business shall include the services historically provided by SVU or its Affiliates to NAI (or which NAI provided to itself), as well as the Services identified on Schedule 2, and (2) New Albertson’s request for Services for New Stores as defined in Exhibit A shall not constitute an increase in volume, amount, level of frequency of Services. The Service Provider shall act under this Services Agreement solely as an independent contractor and not as an agent or employee of any other party or any of such party’s Affiliates. For the purposes of clarity, the parties acknowledge and agree that if and to the extent the Service Provider changes systems and processes used in the course of its business for its own account the Service Provider shall not permit such changes to degrade the Applicable Service Level. (c) The provision of Services by the Service Provider shall be subject to Article V hereof. (d) The parties have agreed to separate the Legal function of SVU and transition certain legal associates to New Albertson’s over a period of up to ninety (90) days after the Effective Date (the “Legal Transition Period”). At the Effective Date, certain attorneys responsible for the provision of certain Services to New Albertson’s (the “Transitioned Attorneys”) will transition to and become employed by New Albertson’s at New Albertson’s option. At some point during the Legal Transition Period, New Albertson’s will have the option to make Qualifying Offers (as defined in the SPA) to some or all of an additional group of identified members of the SVU Legal function. During the Legal Transition Period, the parties will cooperate with respect to the transition of legal matters between them, and each of New Albertson’s (but only with respect to the services provided by the Transitioned Attorneys and only to the extent historically provided to SVU) and SVU will provide legal services pursuant to Schedule 2 hereto, if needed, provided that (i) SVU may, in its discretion and at its expense, provide outside counsel (reasonably selected from a list of outside counsel used by New Albertson’s prior to the Effective Date) in lieu of providing such legal services directly (it being understood that such outside counsel providing Services to New Albertson’s hereunder will be acting on behalf of and as counsel for New Albertson’s, and that (as between New Albertson’s and SVU) New Albertson’s will control the attorney-client relationship); (ii) neither party will in any case provide services with respect to commercial or other litigation that the other party has agreed to assume responsibility for, or to indemnify the other party or its Affiliates for, pursuant to the SPA (provided, however, that SVU will continue to cooperate in providing in-house litigation support (other than litigation management) to the extent historically provided by SVU to New Albertson’s and New Albertson’s acknowledges that during the Legal Transition Period in-house litigation support will continue to be provided to SVU by the remaining SVU legal function not hired by New Albertson’s as of the Effective Date); (iii) SVU will not be responsible for providing legal services to New Albertson’s in quantities that exceed the historical levels provided by SVU to New Albertson’s; and (iv) each party will provide any reasonable and customary waiver of conflicts of interest or similar waiver reasonably requested by the other party or any substituted outside counsel in connection with the legal services provided pursuant to this Services Agreement, provided that no such waiver shall materially disadvantage the other party with respect to any matter handled by such counsel. Upon the elimination of legal services as Services under this Services Agreement, there will be a dollar-for-dollar reduction in the fees payable during the Initial Term equal to the salary and benefits of each employee that transfers employment to New Albertson’s pursuant to a Qualifying Offer (as defined in the SPA) made in New Albertson’s sole discretion, and, if necessary, the parties will execute a letter agreement confirming the reduction as soon as reasonably possible thereafter. (e) Similar to the legal transition referenced in Section 2.1(d), the parties have agreed to the elimination of additional Services originally contemplated to be provided by SVU pursuant to this Services Agreement by the employees of SVU and its Subsidiaries identified on Exhibit G. Upon the elimination of such Services from this Services Agreement, New Albertson’s will receive credits against the fees payable pursuant to this Services Agreement as such credits are set forth on Exhibit G, and, if necessary, the parties will execute a letter agreement confirming the reduction as soon as reasonably practicable thereafter. (f) The parties agree to meet on or before September 20, 2013, to review the Services being provided and determine if there are any Services no longer required and which may be deleted from the Service schedules.

Appears in 3 contracts

Sources: Transition Services Agreement (Safeway Stores 42, Inc.), Transition Services Agreement (Albertsons Companies, Inc.), Transition Services Agreement (Supervalu Inc)

SERVICES TO BE PROVIDED. (a) ~~Notwithstanding anything to~~ Unless otherwise agreed by the ~~contrary contained herein, other than as set forth on the applicable Schedule and subject to Sections 2.4 and 2.10 hereof~~Parties in writing, (i1) ~~the Services to be provided by SVU as~~ each NeighborCare Service Provider ~~hereunder~~ shall be limited to (A) the Services with respect to which it is listed as the Service Provider on Schedule 2 hereto, (B) as to the NAI business which Albertson’s is acquiring, the Services which SVU and its Affiliates have historically provided to the NAI-acquired business, and (C) the Services performed by SVU and its Affiliates for Albertson’s as of immediately prior to the date of the SPA; provided that any change in Services after the date of the SPA but prior to the Effective Date shall be approved by the Steering Committee, (ii) the Services to be provided by Albertson’s as Service Provider hereunder shall be limited to the Services with respect to which it is listed as the Service Provider on Schedule 2 hereto, and (iii) in no event shall the Service Provider be required to provide any other services to the Receiving Party. The parties acknowledge and agree that they have sought to identify all Services to be provided by the Service Provider under this Services Agreement on the Schedules hereto, but that if the Schedules do not include the Services performed immediately prior to the date of the SPA by the Service Provider, the parties shall cooperate after the Closing Date to amend and/or supplement the Schedules hereto from time to time to more accurately reflect such past practice; provided, however, that (i) in no event will the Service Provider be obligated to provide any Service which (A) is listed on Schedule 2 as “deleted” or indicated in any way as no longer required or (B) is indicated to be provided only on a temporary basis and such time period has lapsed, subject to the possible extension of such Service in accordance with Section 3.3, and (ii) Schedule 1 hereto sets forth the agreement of the parties with respect to procurement of goods for the Receiving Party and shall control that Service notwithstanding the past practices of the parties with respect to procurement of goods. (b) The Service Provider or its designees shall perform the Services ~~only~~ in good faith and at a ~~manner, scope, nature and quality (such manner, scope, nature and quality, the “Applicable Service Level”)~~ standard of performance that ~~is, in the case of SVU as the Service Provider, the same~~ is substantially similar in all material respects as to the manner and timeliness in which such Services were performed ~~or to be performed by SVU~~ for ElderCare and its ~~Affiliates for Albertson’s as of immediately~~ subsidiaries prior to the ~~Date~~ Distribution Date, and each ElderCare Service Provider shall be required to perform the Services in good faith and at a standard of ~~the SPA, or, where a specific service level has been provided, as set forth~~ performance that is substantially similar in ~~the Schedules hereto and, in the case of Albertson’s as Service Provider, in~~ all material respects to the manner ~~described on Schedule 2. For the avoidance of doubt, any change~~ and timeliness in ~~service levels provided by the Service Provider to itself~~ which such Services were performed for NeighborCare and its ~~Affiliates after the Date of the SPA shall not affect the Applicable Service Level to be provided~~ subsidiaries prior to the ~~Receiving Party pursuant to this Services Agreement. Unless otherwise set forth herein~~ Distribution Date, and (2) each NeighborCare Service Recipient or ~~on the applicable Schedule~~ElderCare Service Recipient (each, when relevant, a "Service Recipient") shall use the Services ~~provided hereunder shall be used by the Receiving Party~~ solely for substantially the same purposes and in substantially the same manner (including as to volume, amount, ~~level~~ level, or frequency, as applicable) as ~~such Services were~~ the services had been used by the ~~Receiving Party as~~ business of ~~immediately~~ the applicable Service Recipient prior to such date. In no event shall the ~~Date~~ scope of ~~the SPA. Notwithstanding the foregoing, the parties acknowledge and agree~~ a Service required to be performed hereunder exceed that (1) Albertson’s acquisition of the NAI business shall not be deemed an increase of volume, amount, level or frequency, that SVU shall provide the Services contemplated herein to the NAI business, and that SVU’s provision of services to the NAI business shall include the services historically provided by SVU or its Affiliates to NAI (or which NAI provided to itself), as well as the Services identified described on Schedule 21 and Schedule 2 hereof, ~~and (2) Albertson’s request for Services for New Stores as defined~~ unless otherwise agreed by the Parties in ~~Exhibit A shall not constitute an increase in volume, amount, level of frequency of Services~~writing. ~~The~~ Each NeighborCare Service Provider and each ElderCare Service Provider (as applicable, a "Service Provider") shall act under this Services Agreement solely as an independent contractor and not as an agent ~~or employee~~ of any ElderCare Service Recipient or NeighborCare Service Recipient, as applicable. (b) Each Party shall use its good-faith efforts, and agrees to provide such assistance as may be reasonably requested by any Service Recipient, to assist the other ~~party~~ with the development of transition plans to assure a smooth and orderly transition, and shall use its reasonable good-faith efforts to reduce or ~~any~~ eliminate its and its Service Recipients' dependency on the Services no later than the end of the term of such party’s Affiliates. For the purposes of clarity, the parties acknowledge and agree that if and to the extent the Service Provider changes systems and processes used in the course of its business for its own account the Service Provider shall not permit such changes to degrade the Applicable Service LevelService. (c) ~~The provision~~ If it is necessary for any Service Provider to increase staffing or acquire equipment or make any investments or capital expenditures to accommodate an increase in the use of ~~Services by~~ any Service beyond the level of use of such Service prior to the Distribution Date as a result of an increase in volume of the business or a change in the manner in which the business is being conducted, such Service Provider shall inform the Service Recipient in writing of such increase in staffing level, equipment acquisitions, investments or capital expenditures before any such cost or expense is incurred. Upon mutual agreement of the Parties acting in good faith as to the necessity of any such increase, the Service Recipient shall advance to the relevant Service Providers an amount equal to the actual costs and expenses to be ~~subject~~ incurred in connection therewith. If such mutual agreement is not reached, the Service Provider's obligation to ~~Article V hereof~~provide or cause to be provided such Service shall be limited to the level of use of such Service then in effect. (d) ~~The parties have agreed~~ If, by virtue of any termination or reduction of any Services as contemplated by Article IV hereof, it becomes desirable for any Service Provider to ~~separate the Legal function of SVU and transition certain legal associates to Albertson’s over a period of up to ninety (90~~terminate any employee(s) ~~days after the Effective Date (the “Legal Transition Period”). At the Effective Date, certain attorneys responsible for~~ who participated in the provision of ~~certain Services to Albertson’s (~~such Services, the ~~“Transitioned Attorneys”) will transition to and become employed by Albertson’s at Albertson’s option. At some point during~~ Parties shall negotiate in good faith such that the ~~Legal Transition Period, Albertson’s will have the option to make Qualifying Offers (as defined in the SPA) to some or all of~~ applicable Service Recipient shall pay an ~~additional group of identified members~~ appropriate portion of the ~~SVU Legal function. During the Legal Transition Period, the parties will cooperate~~ costs associated with respect to the transition of legal matters between them, and each of Albertson’s (but only with respect to the services provided by the Transitioned Attorneys and only to the extent historically provided to SVU) and SVU will provide legal services pursuant to Schedule 2 hereto, if needed, provided that (i) SVU may, in its discretion and at its expense, provide outside counsel (reasonably selected from a list of outside counsel used by Albertson’s prior to the Effective Date) in lieu of providing such legal services directly (it being understood that such outside counsel providing Services to Albertson’s hereunder will be acting on behalf of and as counsel for Albertson’s, and that (as between Albertson’s and SVU) Albertson’s will control the attorney-client relationship); (ii) neither party will in any case provide services with respect to commercial or other litigation that the other party has agreed to assume responsibility for, or to indemnify the other party or its Affiliates for, pursuant to the SPA (provided, however, that SVU will continue to cooperate in providing in-house litigation support (other than litigation management) to the extent historically provided by SVU to Albertson’s and Albertson’s acknowledges that during the Legal Transition Period in-house litigation support will continue to be provided to SVU by the remaining SVU legal function not hired by Albertson’s as of the Effective Date); (iii) SVU will not be responsible for providing legal services to Albertson’s in quantities that exceed the historical levels provided by SVU to Albertson’s; and (iv) each party will provide any reasonable and customary waiver of conflicts of interest or similar waiver reasonably requested by the other party or any substituted outside counsel in connection with the legal services provided pursuant to this Services Agreement, provided that no such waiver shall materially disadvantage the other party with respect to any matter handled by such counsel. Upon the elimination of legal services as Services under this Services Agreement, there will be a dollar-for-dollar reduction in the fees payable during the Initial Term equal to the salary and benefits of each employee that transfers employment to Albertson’s pursuant to a Qualifying Offer (as defined in the SPA) made in Albertson’s sole discretion, and, if necessary, the parties will execute a letter agreement confirming the reduction as soon as reasonably possible thereaftertermination. (e) ~~Similar~~ If it is necessary for any Service Provider to increase staffing or acquire equipment or make any investments or capital expenditures or otherwise absorb or incur incremental expenses in order to provide any Service as a result of changes arising from or as a result of the Spin-Off and related transactions, including the internal restructuring and changes in or transfers of personnel, upon mutual agreement of the Parties acting in good faith as to the ~~legal transition referenced~~ necessity of any such increase, NeighborCare or ElderCare, as the case may be, shall reimburse the Service Provider, within 5 business days upon receipt of a written invoice, an amount equal to the actual costs and expenses incurred by the Service Provider in ~~Section 2.1(d)~~connection therewith. If such mutual agreement is not reached, the ~~parties have agreed~~ Service Provider's obligation to ~~the elimination of additional Services originally contemplated~~ provide or cause to be provided ~~by SVU pursuant~~ such Service shall be limited to ~~this Services Agreement by~~ the ~~employees~~ level of ~~SVU and its Subsidiaries identified on Exhibit G. Upon the elimination~~ use of such ~~Services from this Services Agreement~~Service prior to the Distribution Date; provided, ~~Albertson’s will receive credits against the fees payable pursuant to this Services Agreement as~~ that if such ~~credits are set forth on Exhibit G, and, if necessary~~level cannot be provided by such Service Provider without any increase in investment or expenditure, the ~~parties will execute~~ applicable Service Provider shall provide the highest level of Service which can be provided on a ~~letter agreement confirming the reduction as soon as reasonably practicable thereafter~~commercially reasonable basis without any increase in investment or expenditure. (f) The ~~parties agree~~ Parties will use good-faith efforts to ~~meet on~~ reasonably cooperate with each other in all matters relating to the provision and receipt of Services. Such cooperation shall include seeking or ~~before September 20~~applying for all consents, ~~2013~~licenses or approvals necessary to permit each party to perform its obligations hereunder. The Parties will, for a period of six years after the Distribution Date, maintain documentation supporting the information contained in the Schedules and cooperate with each other in making such information available as needed, subject to ~~review~~ appropriate confidentiality requirements, in the ~~Services being provided and determine if there are~~ event of any ~~Services no longer required and which may be deleted from the Service schedules~~tax audit or litigation.

Appears in 3 contracts

Sources: Transition Services Agreement (Neighborcare Inc), Transition Services Agreement (Genesis Healthcare Corp), Transition Services Agreement (Genesis Healthcare Corp)

SERVICES TO BE PROVIDED. Contractor shall during normal business hours and through licensed physicians and other health care practitioners, provide to Members Services that (ai) ~~Notwithstanding anything to the contrary contained herein,~~ are Authorized or (ii) are Emergency Services. Contractor will provide Services through physicians and other ~~than~~ health care professionals that are listed on Exhibit 1 and that are credentialed as set forth ~~on the applicable Schedule and subject to Sections 2.4 and 2.10 hereof, (i) the Services to be provided by SVU as Service Provider hereunder~~ in Section 7.3. Contractor shall ~~be limited to (A) the Services with respect to which it is listed as the Service Provider on Schedule 2 hereto, (B) as~~ notify TPMG of any change to the ~~NAI business which Albertson’s is acquiring, the Services which SVU~~ physicians and its Affiliates have historically provided to the NAI-acquired business, and (C) the Services performed by SVU and its Affiliates for Albertson’s as of immediately prior to the date of the SPA; provided that any change in Services after the date of the SPA but prior to the Effective Date shall be approved by the Steering Committee, (ii) the Services to be provided by Albertson’s as Service Provider hereunder shall be limited to the Services with respect to which it is other health care professionals listed ~~as the Service Provider~~ on Schedule 2 hereto, and (iii) in no event shall the Service Provider be required to provide any other services to the Receiving Party. The parties acknowledge and agree that they have sought to identify all Services to be provided by the Service Provider under this Services Agreement on the Schedules hereto, but that if the Schedules do not include the Services performed immediately prior to the date of the SPA by the Service Provider, the parties shall cooperate after the Closing Date to amend and/or supplement the Schedules hereto from time to time to more accurately reflect such past practiceExhibit I; provided, however, ~~that (i) in no event will the Service Provider~~ all such physicians and other health care practitioners must be obligated to provide any Service which (A) is listed on Schedule 2 as “deleted” or indicated in any way as no longer required or (B) is indicated to be provided only on a temporary basis and such time period has lapsed, subject to the possible extension of such Service in accordance with Section 3.3, and (ii) Schedule 1 hereto sets forth the agreement of the parties with respect to procurement of goods for the Receiving Party and shall control that Service notwithstanding the past practices of the parties with respect to procurement of goods. (b) The Service Provider or its designees shall perform the Services only in a manner, scope, nature and quality (such manner, scope, nature and quality, the “Applicable Service Level”) that is, in the case of SVU as the Service Provider, the same in all material respects as the manner in which such Services were performed or to be performed by SVU and its Affiliates for Albertson’s as of immediately prior to the Date of the SPA, or, where a specific service level has been provided, credentialed as set forth in Section 7.3 before providing Services to Members. Contractor shall provide Services at the ~~Schedules hereto and~~facility location(s) set forth in Exhibit 1. Contractor shall be available to provide to members prompt urgent Services that are Authorized, on a same-day basis when medically indicated. If current medically acceptable diagnostic laboratory or x-ray results are provided by KP to Contractor in connection with Contractor's rendering of Services, Contractor will not repeat them. Contractor shall make Services available to Members in the same manner, in accordance with the ~~case~~ same standards, and with the same availability, as to its other patients. Contractor shall ensure that Services provided under this Agreement are readily available and accessible, provided in a prompt and efficient manner without delays in terms of ~~Albertson’s as Service Provider~~wait times or scheduling of appointments, and consistent with professionally recognized standards of practice and KP practice guidelines. ROMG physicians shall prescribe drugs and medications in ~~the manner described on Schedule 2~~accord with KP's drug formulary policy. For the avoidance of doubt, any change in service levels provided by the Service Provider to itself and its Affiliates after the Date of the SPA shall not affect the Applicable Service Level to be provided As applicable to the ~~Receiving Party pursuant~~ scope of care covered by this Agreement, Contractor shall be available to ~~this~~ provide Services ~~Agreement~~that are Emergency Services twenty-four (24) hours per day, seven (7) days per week. ~~Unless otherwise set forth herein~~ Contractor warrants that any and all equipment necessary or ~~on the applicable Schedule, the~~ appropriate for use in connection with providing Services ~~provided~~ hereunder shall be ~~used by the Receiving Party for substantially the same purposes~~ registered, surveyed, and calibrated in ~~substantially the same manner (including as~~ accord with applicable federal and state laws and regulations pertaining to ~~volume~~such equipment. Upon reasonable request, ~~amount, level or frequency, as applicable) as such Services were used by the Receiving Party as of immediately prior~~ Contractor will allow TPMG and its authorized agents and representatives access to any and all records pertaining to the ~~Date~~ maintenance and safety of such equipment. Contractor shall promptly notify TPMG of the SPA. Notwithstanding the foregoing, the parties acknowledge and agree that (1) Albertson’s acquisition of the NAI business shall not be deemed an increase of volume, amount, level or frequency, that SVU shall provide the Services contemplated herein to the NAI business, and that SVU’s provision of services to the NAI business shall include the services historically provided by SVU or its Affiliates to NAI (or which NAI provided to itself), as well as the Services identified on Schedule 2, and (2) Albertson’s request for Services for New Stores as defined in Exhibit A shall not constitute an increase in volume, amount, level of frequency of Services. The Service Provider shall act under this Services Agreement solely as an independent contractor and not as an agent or employee malfunction of any ~~other party or any of such party’s Affiliates. For the purposes of clarity, the parties acknowledge and agree that if and to the extent the Service Provider changes systems and processes~~ equipment used in the course of its business for its own account the Service Provider shall not permit such changes to degrade the Applicable Service Level. (c) The provision of Services by the Service Provider shall be subject to Article V hereof. (d) The parties have agreed to separate the Legal function of SVU and transition certain legal associates to Albertson’s over a period of up to ninety (90) days after the Effective Date (the “Legal Transition Period”). At the Effective Date, certain attorneys responsible for the provision of certain Services to Albertson’s (the “Transitioned Attorneys”) will transition to and become employed by Albertson’s at Albertson’s option. At some point during the Legal Transition Period, Albertson’s will have the option to make Qualifying Offers (as defined in the SPA) to some or all of an additional group of identified members of the SVU Legal function. During the Legal Transition Period, the parties will cooperate with respect to the transition of legal matters between them, and each of Albertson’s (but only with respect to the services provided by the Transitioned Attorneys and only to the extent historically provided to SVU) and SVU will provide legal services pursuant to Schedule 2 hereto, if needed, provided that (i) SVU may, in its discretion and at its expense, provide outside counsel (reasonably selected from a list of outside counsel used by Albertson’s prior to the Effective Date) in lieu of providing such legal services directly (it being understood that such outside counsel providing Services to Albertson’s hereunder will be acting on behalf of and as counsel for Albertson’s, and that (as between Albertson’s and SVU) Albertson’s will control the attorney-client relationship); (ii) neither party will in any case provide services with respect to commercial or other litigation that the other party has agreed to assume responsibility for, or to indemnify the other party or its Affiliates for, pursuant to the SPA (provided, however, that SVU will continue to cooperate in providing in-house litigation support (other than litigation management) to the extent historically provided by SVU to Albertson’s and Albertson’s acknowledges that during the Legal Transition Period in-house litigation support will continue to be provided to SVU by the remaining SVU legal function not hired by Albertson’s as of the Effective Date); (iii) SVU will not be responsible for providing legal services to Albertson’s in quantities that exceed the historical levels provided by SVU to Albertson’s; and (iv) each party will provide any reasonable and customary waiver of conflicts of interest or similar waiver reasonably requested by the other party or any substituted outside counsel in connection with the legal services provided pursuant to this Services Agreement, provided that no such waiver shall materially disadvantage the other party with respect to any matter handled by such counsel. Upon the elimination of legal services as Services under this Services Agreement, there will be a dollar-for-dollar reduction in the fees payable during the Initial Term equal to the salary and benefits of each employee that transfers employment to Albertson’s pursuant to a Qualifying Offer (as defined in the SPA) made in Albertson’s sole discretion, and, if necessary, the parties will execute a letter agreement confirming the reduction as soon as reasonably possible thereafterhereunder. (e) Similar to the legal transition referenced in Section 2.1(d), the parties have agreed to the elimination of additional Services originally contemplated to be provided by SVU pursuant to this Services Agreement by the employees of SVU and its Subsidiaries identified on Exhibit G. Upon the elimination of such Services from this Services Agreement, Albertson’s will receive credits against the fees payable pursuant to this Services Agreement as such credits are set forth on Exhibit G, and, if necessary, the parties will execute a letter agreement confirming the reduction as soon as reasonably practicable thereafter. (f) The parties agree to meet on or before September 20, 2013, to review the Services being provided and determine if there are any Services no longer required and which may be deleted from the Service schedules.

Appears in 2 contracts

Sources: Professional Services Agreement (Oncure Technolgies Corp), Professional Services Agreement (Oncure Technolgies Corp)

SERVICES TO BE PROVIDED. During the Term of this Agreement, Unise shall provide the Company with such regular and customary consulting advice as is reasonably requested by the Company, provided that Unise shall not be required to undertake duties not reasonably within the scope of the financial advisory services contemplated by this Agreement. It is understood and acknowledged by the parties that the value of Unise advice is not readily quantifiable, and that Unise shall be obligated to render advice upon the request of the Company, in good faith, but shall not be obligated to spend any specific amount of time in so doing. The Company recognizes and confirms that in advising the Company in completing its engagement hereunder, Unise will be using and relying on data, material and other information furnished to Unise by the Company. It is understood that in performing under this engagement Unise may reasonably rely upon any information so supplied without independent verification and that Unise shall not have any responsibility for such independent verification. As a condition to Unise's obligation to provide services hereunder, the Company represents, warrants and covenants to Unise that none of the information furnished to Unise by the Company shall include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading. Unise agrees that it will keep confidential and not disclose or permit its employees or representatives to disclose information received from the Company (~~a) Notwithstanding anything~~ other than to Unise employees involved in the performance of services hereunder or otherwise on a need-to-know basis), or otherwise use such information, except as contemplated in this letter agreement, as may be authorized by the Company in connection with Unise's performance of services hereunder, or as such disclosure may be required by law. The Company acknowledges that all advice given by Unise in connection with its engagement hereunder is intended solely for the benefit and use of the Board of Directors and senior management of the Company. Except as may be required by applicable law, the Company agrees that no such advice shall be used for any other purpose or be reproduced, disseminated, quoted or referred to at any time, in any manner or for any purpose, nor shall any public references to Unise be made by or on behalf of the Company, in each case without Unise's prior written consent. The Company recognizes that Unise has been retained only by the Company and that its engagement is not deemed to be on behalf of, and is not intended to confer any rights or bestow the status of third-party beneficiary upon, any shareholder or employee of the Company, or any other person not a party hereto as against Unise or any of its affiliates, their respective limited and general partners, directors, officers, agents and employees or each other person, if any, controlling Unise or any of its affiliates. Unless otherwise expressly stated in writing by Unise, no advice or opinions rendered to the ~~contrary contained~~ Board of Directors or management of the Company during the course of the engagement hereunder shall constitute a recommendation to any other party and no one other than the Company, its directors and its senior management, is authorized to rely upon the engagement of Unise or any statements or conduct by Unise. Moreover, it is acknowledged that the relationship of Unise to the Company is that of an independent contractor, that the obligations and responsibilities of Unise to the Company are limited to those specifically set forth herein, ~~other than as set forth on the applicable Schedule~~ and ~~subject to Sections 2.4~~ that Unise, by entering into this agreement and ~~2.10 hereof~~satisfying its obligations hereunder, ~~(i) the Services to be provided by SVU as Service Provider hereunder shall be limited to (A) the Services~~ does not assume any fiduciary duties with respect to ~~which it is listed as~~ the ~~Service Provider on Schedule 2 hereto~~Company, ~~(B) as to the NAI business which Albertson’s is acquiring~~its Board of Directors, ~~the Services which SVU and~~ its ~~Affiliates have historically provided to the NAI-acquired business~~management, ~~and (C) the Services performed by SVU and~~ its Affiliates for Albertson’s as of immediately prior to the date of the SPA; provided that any change in Services after the date of the SPA but prior to the Effective Date shall be approved by the Steering Committee, (ii) the Services to be provided by Albertson’s as Service Provider hereunder shall be limited to the Services employees or its shareholders. All decisions made with respect to ~~which it is listed~~ potential financings and mergers and acquisition transactions, whether or not consistent with advice rendered by Unise, shall be those of the Board of Directors or management of the Company, as the ~~Service Provider on Schedule 2 hereto~~case may be. Unise’s duties may include, but will not necessarily be limited to, providing recommendations and ~~(iii)~~ assisting in ~~no event shall~~ the ~~Service Provider be required~~ following: Rendering advice with regard to ~~provide~~ internal operations, including: ● the formation of corporate goals and their implementation; ● the Company's financial structure and its divisions or subsidiaries; ● securing, when and if necessary and possible, additional financing through banks and/or insurance companies; and ● corporate organization and personnel; and Rendering advice with regard to any of the following corporate finance matters: ● changes in the capitalization of the Company; ● changes in the Company's corporate structure; ● redistribution of shareholdings of the Company's stock; ● sales of securities in private transactions; ● use of funds not in the ordinary course of business; ● alternative uses of corporate assets; and ● structure and use of debt; and Rendering advice, assistance and introduction to third parties with regard to any of the following merger, acquisition, joint venture or strategic alliance activities: ● the acquisition and/or merger of or with other companies; ● joint ventures or strategic alliances with other companies; ● divestiture or any other ~~services to~~ similar transaction; and ● the Receiving Party. The parties acknowledge and agree that they have sought to identify all Services to be provided by the Service Provider under this Services Agreement on the Schedules hereto, but that if the Schedules do not include the Services performed immediately prior to the date sale of the ~~SPA by~~ Company itself (or any significant percentage, assets, subsidiaries or affiliates thereof); (Such activities shall also include Unise advising the ~~Service Provider~~Company in determining, if appropriate, the ~~parties shall cooperate after~~ best means and timing to effect a sale, merger, financing, restructuring, joint venture or other combination or disposition of the ~~Closing Date to amend~~ Company, its assets and/or ~~supplement~~ its stock, or any portion thereof, whether owned directly or indirectly, in one or more transactions (each a "Transaction" ) with any person or entity (including, among others, former or existing creditors, investors, affiliates, employees and/or shareholders), (all of the ~~Schedules hereto from time to time to more accurately reflect~~ foregoing being considered "Constituents"). To facilitate any such ~~past practice; provided~~Transactions, ~~however~~if and when appropriate, ~~that~~ Unise will review a list of potential acquirers, investors and/or strategic partners (ijointly referred herein as "Investors") in no event will the Service Provider be obligated to provide any Service which (A) is listed on Schedule 2 as “deleted” or indicated in any way as no longer required or (B) is indicated to be provided only on a temporary basis and such time period has lapsedand, subject to the ~~possible extension of~~ Company' s consent in each case, interact with such ~~Service~~ Investors in ~~accordance~~ an effort to create interest in one or more Transactions. Unise will coordinate the negotiating process with ~~Section 3.3~~the Company and its other advisors, will actively participate in negotiations, and ~~(ii) Schedule 1 hereto sets forth~~ otherwise reasonably assist the agreement of the parties with respect to procurement of goods for the Receiving Party and shall control that Service notwithstanding the past practices of the parties with respect to procurement of goods. (b) The Service Provider or its designees shall perform the Services only Company in a manner, scope, nature and quality (such manner, scope, nature and quality, the “Applicable Service Level”) that is, in the case of SVU as the Service Provider, the same in all material respects as the manner in which such Services were performed or to be performed by SVU and its Affiliates for Albertson’s as of immediately prior to the Date of the SPA, or, where a specific service level has been provided, as set forth in the Schedules hereto and, in the case of Albertson’s as Service Provider, in the manner described on Schedule 2. For the avoidance of doubt, any change in service levels provided by the Service Provider to itself and its Affiliates after the Date of the SPA shall not affect the Applicable Service Level to be provided to the Receiving Party pursuant to this Services Agreement. Unless otherwise set forth herein or on the applicable Schedule, the Services provided hereunder shall be used by the Receiving Party for substantially the same purposes and in substantially the same manner (including as to volume, amount, level or frequency, as applicable) as such Services were used by the Receiving Party as of immediately prior to the Date of the SPA. Notwithstanding the foregoing, the parties acknowledge and agree that (1) Albertson’s acquisition of the NAI business shall not be deemed an increase of volume, amount, level or frequency, that SVU shall provide the Services contemplated herein to the NAI business, and that SVU’s provision of services to the NAI business shall include the services historically provided by SVU or its Affiliates to NAI (or which NAI provided to itself), as well as the Services identified on Schedule 2, and (2) Albertson’s request for Services for New Stores as defined in Exhibit A shall not constitute an increase in volume, amount, level of frequency of Services. The Service Provider shall act under this Services Agreement solely as an independent contractor and not as an agent or employee of any other party or any of such party’s Affiliates. For the purposes of clarity, the parties acknowledge and agree that if and to the extent the Service Provider changes systems and processes used in the course of its business for its own account the Service Provider shall not permit such changes to degrade the Applicable Service Level. (c) The provision of Services by the Service Provider shall be subject to Article V hereof. (d) The parties have agreed to separate the Legal function of SVU and transition certain legal associates to Albertson’s over a period of up to ninety (90) days after the Effective Date (the “Legal Transition Period”). At the Effective Date, certain attorneys responsible for the provision of certain Services to Albertson’s (the “Transitioned Attorneys”) will transition to and become employed by Albertson’s at Albertson’s option. At some point during the Legal Transition Period, Albertson’s will have the option to make Qualifying Offers (as defined in the SPA) to some or all of an additional group of identified members of the SVU Legal function. During the Legal Transition Period, the parties will cooperate with respect to the transition of legal matters between them, and effectuating each of Albertson’s (but only with respect to the services provided by the Transitioned Attorneys and only to the extent historically provided to SVU) and SVU will provide legal services pursuant to Schedule 2 hereto, if neededTransaction, provided that ~~(i) SVU may, in its~~ the Company shall have the absolute discretion ~~and at its expense, provide outside counsel (reasonably selected from a list of outside counsel used by Albertson’s prior~~ to the Effective Date) in lieu of providing such legal services directly (it being understood that such outside counsel providing Services to Albertson’s hereunder will be acting on behalf of and as counsel for Albertson’sagree whether, and ~~that (as between Albertson’s~~ on what terms, to implement any such Transaction.) and ~~SVU) Albertson’s will control the attorney-client relationship); (ii) neither party will in~~ Rendering advice and/or assistance with regard to any case provide services with respect to commercial or other litigation that the other party has agreed to assume responsibility for, or to indemnify the other party or its Affiliates for, pursuant to the SPA (provided, however, that SVU will continue to cooperate in providing in-house litigation support (other than litigation management) to the extent historically provided by SVU to Albertson’s and Albertson’s acknowledges that during the Legal Transition Period in-house litigation support will continue to be provided to SVU by the remaining SVU legal function not hired by Albertson’s as of the Effective Date); (iii) SVU will not be responsible for providing legal services to Albertson’s in quantities that exceed the historical levels provided by SVU to Albertson’s; and (iv) each party will provide any reasonable and customary waiver of conflicts of interest or similar waiver reasonably requested by the other party bank financing or any ~~substituted outside counsel in connection with the legal services provided pursuant~~ other financing from financial institutions or individuals (including but not limited to ~~this Services Agreement~~revolving credit facilities, ~~provided that no such waiver shall materially disadvantage the other party with respect to any matter handled by such counsel. Upon the elimination~~ lines of ~~legal services as Services under this Services Agreement~~credit, ~~there will be a dollar-for-dollar reduction in the fees payable during the Initial Term equal to the salary~~ term loans, rediscounted credit facilities, senior and ~~benefits of each employee that transfers employment to Albertson’s pursuant to a Qualifying Offer (as defined in the SPA) made in Albertson’s sole discretion~~junior loans, ~~and~~whether collateralized or unsecured, ~~if necessary, the parties will execute a letter agreement confirming the reduction as soon as reasonably possible thereafter~~etc. ~~(e) Similar to the legal transition referenced in Section 2.1(d~~), the parties have agreed to the elimination of additional Services originally contemplated to be provided by SVU pursuant to this Services Agreement by the employees of SVU and its Subsidiaries identified on Exhibit G. Upon the elimination of such Services from this Services Agreement, Albertson’s will receive credits against the fees payable pursuant to this Services Agreement as such credits are set forth on Exhibit G, and, if necessary, the parties will execute a letter agreement confirming the reduction as soon as reasonably practicable thereafter. (f) The parties agree to meet on or before September 20, 2013, to review the Services being provided and determine if there are any Services no longer required and which may be deleted from the Service schedules.

Appears in 2 contracts

Sources: Financial Advisory Services Agreement (Sparking Events, Inc.), Financial Advisory Services Agreement (Sparking Events, Inc.)

SERVICES TO BE PROVIDED. (a) ~~Notwithstanding anything to~~ Unless otherwise agreed by the contrary contained herein, other than as set forth on the applicable Schedule and subject to Sections 2.4 and 2.10 hereof, (i) the Services to be provided by SVU as Service Provider hereunder shall be limited to (A) the Services with respect to which it is listed as the Service Provider on Schedule 2 hereto, (B) as to the NAI business which Albertson’s is acquiringParties, the Services which SVU and its Affiliates have historically provided to the NAI-acquired business, and (C) the Services performed by SVU and its Affiliates for Albertson’s as of immediately prior to the date of the SPA; provided that any change in Services after the date of the SPA but prior to the Effective Date Provider shall be approved by the Steering Committee, (ii) the Services to be provided by Albertson’s as Service Provider hereunder shall be limited to the Services with respect to which it is listed as the Service Provider on Schedule 2 hereto, and (iii) in no event shall the Service Provider be required to provide any other services to the Receiving Party. The parties acknowledge and agree that they have sought to identify all Services to be provided by the Service Provider under this Services Agreement on the Schedules hereto, but that if the Schedules do not include the Services performed immediately prior to the date of the SPA by the Service Provider, the parties shall cooperate after the Closing Date to amend and/or supplement the Schedules hereto from time to time to more accurately reflect such past practice; provided, however, that (i) in no event will the Service Provider be obligated to provide any Service which (A) is listed on Schedule 2 as “deleted” or indicated in any way as no longer required or (B) is indicated to be provided only on a temporary basis and such time period has lapsed, subject to the possible extension of such Service in accordance with Section 3.3, and (ii) Schedule 1 hereto sets forth the agreement of the parties with respect to procurement of goods for the Receiving Party and shall control that Service notwithstanding the past practices of the parties with respect to procurement of goods. (b) The Service Provider or its designees shall perform the Services only in a ~~manner, scope, nature and quality (such manner, scope, nature and quality, the “Applicable Service Level”)~~ manner that ~~is, in the case of SVU as the Service Provider, the same~~ is substantially similar in all material respects as to the manner in which such Services were performed ~~or to be performed by SVU and its Affiliates~~ for ~~Albertson’s as of immediately~~ the Business prior to the ~~Date of~~ Agreement Date, and the SPA, or, where a specific service level has been provided, as set forth in the Schedules hereto and, in the case of Albertson’s as Service Provider, in the manner described on Schedule 2. For the avoidance of doubt, any change in service levels provided by the Service Provider to itself and its Affiliates after the Date of the SPA Recipient shall ~~not affect the Applicable Service Level to be provided to the Receiving Party pursuant to this~~ use such Services ~~Agreement. Unless otherwise set forth herein or on the applicable Schedule, the Services provided hereunder shall be used by the Receiving Party~~ for substantially the same purposes and in substantially the same manner ~~(including~~ as ~~to volume, amount, level or frequency, as applicable) as~~ the Business had used such Services ~~were used by the Receiving Party as of immediately~~ prior to such date; provided, however, that in no event shall the ~~Date~~ scope of the ~~SPA. Notwithstanding~~ Services required to be performed hereunder exceed that described in Annex A unless the ~~foregoing, the parties acknowledge and~~ Provider shall otherwise agree that (1) Albertson’s acquisition of the NAI business shall not be deemed an increase of volume, amount, level or frequency, that SVU shall provide the Services contemplated herein to the NAI business, and that SVU’s provision of services to the NAI business shall include the services historically provided by SVU or its Affiliates to NAI (or which NAI provided to itself), as well as the Services identified on Schedule 2, and (2) Albertson’s request for Services for New Stores as defined in ~~Exhibit A shall not constitute an increase in volume, amount, level of frequency of Services~~writing. The ~~Service~~ Provider shall act under this Transition Services Agreement solely as an independent contractor and not as an agent of the Recipient. (b) If it is necessary for the Provider to increase staffing or ~~employee~~ acquire equipment or make any investments or capital expenditures to accommodate an increase in the use of any ~~other party or any~~ Service beyond the level of use of such ~~party’s Affiliates. For the purposes~~ Service as specified in Annex A (or if no level of ~~clarity~~use is specified in Annex A, the ~~parties acknowledge and agree that if and~~ level of use of such Service by the Business immediately prior to the ~~extent~~ Agreement Date), as a result of an increase in volume of the ~~Service Provider changes systems and processes used~~ Business or a change in the ~~course of its business for its own account~~ manner in which the ~~Service~~ Business is being conducted, the Provider shall inform the Recipient in writing of such increase in staffing level, equipment acquisitions, investments or capital expenditures before any such cost or expense is incurred. Upon mutual agreement of the Parties as to the necessity of any such increase, the Recipient (unless the Recipient and the Provider shall otherwise agree in writing) shall advance to the Provider an amount equal to the actual costs and expenses to be incurred in connection therewith. If such mutual agreement is not ~~permit~~ reached, the Provider's obligation to provide or cause to be provided such ~~changes~~ Service shall be limited to ~~degrade~~ the ~~Applicable~~ level of use of such Service ~~Level~~as specified in Annex A (or if no level of use is specified in Annex A, the level of use of such Service by the Business immediately prior to the Agreement Date). (c) The Provider shall have the right to halt provision of the Services ~~by the Service Provider shall be subject to~~ temporarily for any reason specified in Article V (Force Majeure) hereof. (d) The ~~parties have agreed~~ Recipient agrees to ~~separate~~ use its reasonable good faith efforts to reduce or eliminate its dependency on the Legal function of SVU and transition certain legal associates to Albertson’s over a period of up to ninety (90) days after the Effective Date (the “Legal Transition Period”). At the Effective Date, certain attorneys responsible for the provision of certain Services to Albertson’s (the “Transitioned Attorneys”) will transition to and become employed by Albertson’s at Albertson’s option. At some point during the Legal Transition Period, Albertson’s will have the option to make Qualifying Offers (as defined in the SPA) to some or all of an additional group of identified members of the SVU Legal function. During the Legal Transition Period, the parties will cooperate with respect to the transition of legal matters between them, and each of Albertson’s (but only with respect to the services provided by the Transitioned Attorneys and only to the extent historically provided to SVU) and SVU will provide legal services pursuant to Schedule 2 hereto, if needed, provided that (i) SVU may, in its discretion and at its expense, provide outside counsel (reasonably selected from a list of outside counsel used by Albertson’s prior to the Effective Date) in lieu of providing such legal services directly (it being understood that such outside counsel providing Services to Albertson’s hereunder will be acting on behalf of and as counsel for Albertson’s, and that (as between Albertson’s and SVU) Albertson’s will control the attorney-client relationship); (ii) neither party will in any case provide services with respect to commercial or other litigation that the other party has agreed to assume responsibility for, or to indemnify the other party or its Affiliates for, pursuant to the SPA (provided, however, that SVU will continue to cooperate in providing in-house litigation support (other than litigation management) to the extent historically provided by SVU to Albertson’s and Albertson’s acknowledges that during the Legal Transition Period in-house litigation support will continue to be provided to SVU by the remaining SVU legal function not hired by Albertson’s as of the Effective Date); (iii) SVU will not be responsible for providing legal services to Albertson’s in quantities that exceed the historical levels provided by SVU to Albertson’s; and (iv) each party will provide any reasonable and customary waiver of conflicts of interest or similar waiver reasonably requested by the other party or any substituted outside counsel in connection with the legal services provided pursuant to this Services Agreement, provided that no such waiver shall materially disadvantage the other party with respect to any matter handled by such counsel. Upon the elimination of legal services as Services under this Services Agreement, there will be a dollar-for-dollar reduction in the fees payable during the Initial Term equal to the salary and benefits of each employee that transfers employment to Albertson’s pursuant to a Qualifying Offer (as defined in the SPA) made in Albertson’s sole discretion, and, if necessary, the parties will execute a letter agreement confirming the reduction as soon as is reasonably ~~possible thereafter~~practicable consistent with Section 7. (e) ~~Similar~~ The Provider will use reasonable efforts in supplying the Services to the ~~legal transition referenced~~ Recipient. The Services will be performed in ~~Section 2.1(d),~~ a timely manner substantially consistent with the ~~parties have agreed~~ recent historical practice of the Business prior to the ~~elimination of additional Services originally contemplated to be provided by SVU pursuant to this Services~~ Agreement by the employees of SVU and its Subsidiaries identified on Exhibit G. Upon the elimination of such Services from this Services Agreement, Albertson’s will receive credits against the fees payable pursuant to this Services Agreement as such credits are set forth on Exhibit G, and, if necessary, the parties will execute a letter agreement confirming the reduction as soon as reasonably practicable thereafterDate. (f) The parties ~~agree~~ will use good faith efforts to ~~meet on~~ reasonably cooperate with each other in all matters relating to the provision and receipt of Services. Such cooperation shall include obtaining all consents, licenses or ~~before September 20~~approvals necessary to permit each party to perform its obligations hereunder; provided that neither the Recipient nor the Provider shall be required to pay any amounts to any third parties or to grant any accommodation, ~~2013~~financial or otherwise, to ~~review~~ secure the same. The parties will, for a period of six (6) years after the Agreement Date, maintain information relating to the Services ~~being provided~~ and ~~determine if there are~~ cooperate with each other in making such information available as needed, subject to appropriate confidentiality requirements, in the event of any ~~Services no longer required and which may be deleted from the Service schedules~~tax audit or litigation.

Appears in 1 contract

Sources: Transition Services Agreement (Easylink Services Corp)

SERVICES TO BE PROVIDED. (a) ~~Notwithstanding anything~~ Unless otherwise set forth or contemplated by the Schedules or as agreed in writing by the parties, Newco shall, to the ~~contrary contained herein~~extent applicable, ~~other than as set forth on~~ provide the ~~applicable Schedule and subject to Sections 2.4 and 2.10 hereof, (i) the~~ Transition Services to ~~be provided by SVU as Service Provider hereunder shall be limited to (A)~~ Seller in substantially the ~~Services~~ same manner, having the same quality and in accordance with ~~respect to which it is listed~~ the same standards as the ~~Service Provider on Schedule 2 hereto, (B) as to the NAI business which Albertson’s is acquiring, the~~ Transition Services ~~which SVU and its Affiliates have historically provided to the NAI-acquired business, and (C) the Services~~ were performed by ~~SVU and its Affiliates~~ or for ~~Albertson’s as of immediately~~ the Operating Companies prior to the date of the SPA; provided that any change in Services after the date of the SPA but prior to the Effective Date shall be approved by the Steering Committee, (ii) the Services to be provided by Albertson’s as Service Provider hereunder shall be limited to the Services with respect to which it is listed as the Service Provider on Schedule 2 hereto, and (iii) in no event shall the Service Provider be required to provide any other services to the Receiving Party. The parties acknowledge and agree that they have sought to identify all Services to be provided by the Service Provider under this Services Agreement on the Schedules hereto, but that if the Schedules do not include the Services performed immediately prior to the date of the SPA by the Service Provider, the parties shall cooperate after the Closing ~~Date to amend and/or supplement the Schedules hereto from time to time to more accurately reflect such past practice~~Date; provided, however, ~~that (i) in~~ Newco shall have no ~~event will the Service Provider be obligated~~ obligation to provide ~~any Service~~ Transition Services which ~~(A) is listed on Schedule 2 as “deleted” or indicated in any way as no longer required or (B) is indicated~~ require Newco to ~~be provided only on a temporary basis and such time period has lapsed, subject~~ utilize additional resources beyond those needed to perform the Transition Services immediately prior to the ~~possible extension of such Service in accordance with Section 3.3~~Closing, ~~and (ii) Schedule 1 hereto sets forth~~ to the agreement of the parties with respect to procurement of goods for the Receiving Party and shall control that Service notwithstanding the past practices of the parties with respect to procurement of goodsextent applicable. (b) ~~The Service Provider~~ Nothing contained herein or ~~its designees~~ in the Schedules shall ~~perform the Services only in~~ constitute or be deemed to constitute a ~~manner~~partnership, ~~scope~~joint venture or agency relationship between Seller and Newco. Newco shall not have any right or authority, ~~nature~~ and ~~quality (such manner~~shall not attempt to enter into any contract, ~~scope~~commitment, ~~nature and quality~~or agreement or incur any debt or liability, ~~the “Applicable Service Level”) that is~~of any nature, in the ~~case~~ name of SVU as the Service Provider, the same in all material respects as the manner in which such Services were performed or to be performed by SVU and its Affiliates for Albertson’s as of immediately prior to the Date of the SPA, or, where a specific service level has been provided, as set forth in the Schedules hereto and, in the case of Albertson’s as Service Provider, in the manner described on Schedule 2Seller. For the avoidance of doubt, any change in service levels provided by the Service Provider to itself and its Affiliates after the Date of the SPA shall not affect the Applicable Service Level to be provided to the Receiving Party pursuant to this Services Agreement. Unless otherwise set forth herein or on the applicable Schedule, the Services provided hereunder shall be used by the Receiving Party for substantially the same purposes and in substantially the same manner (including as to volume, amount, level or frequency, as applicable) as such Services were used by the Receiving Party as of immediately prior to the Date of the SPA. Notwithstanding the foregoing, the parties acknowledge and agree that (1) Albertson’s acquisition of the NAI business shall not be deemed an increase of volume, amount, level or frequency, that SVU shall provide the Services contemplated herein to the NAI business, and that SVU’s provision of services to the NAI business shall include the services historically provided by SVU or its Affiliates to NAI (or which NAI provided to itself), as well as the Services identified on Schedule 2, and (2) Albertson’s request for Services for New Stores as defined in Exhibit A shall not constitute an increase in volume, amount, level of frequency of Services. The Service Provider Newco shall act under this ~~Services~~ Agreement solely as an independent contractor and not as an agent of Seller. Nothing contained herein shall constitute or ~~employee~~ be deemed to constitute an employment relationship between Seller and the employees of ~~any other party or any of such party’s Affiliates. For the purposes of clarity, the parties acknowledge and agree that if and to the extent the Service Provider changes systems and processes used~~ Newco engaged in the ~~course~~ providing of Transition Services. Newco shall be solely responsible for the payment of compensation and benefits to its ~~business for~~ employees and any payments or withholdings to governmental agencies relating to its ~~own account~~ employees, and shall make all staffing decisions and direct the ~~Service Provider shall not permit such changes to degrade~~ performance of the ~~Applicable Service Level~~Transition Services. (c) ~~The~~ Newco shall have the right to suspend the provision of relevant Transition Services by at any time it or any of its Affiliates has to shut down temporarily for maintenance purposes the operation of the facilities providing any Transition Service ~~Provider~~ whenever, in its reasonable discretion, such action is necessary; provided that Newco shall (i) give Seller as much advance notice as is reasonably practicable of any shutdown of the facilities providing any Transition Services and (ii) use reasonable efforts to schedule maintenance in consultation with Seller so as not unreasonably to interfere with Seller’s business. Where feasible, Newco’s notice of any shutdown shall be ~~subject~~ given in writing. Where written notice is not feasible, oral notice shall be given and promptly confirmed in writing. Newco shall be relieved of its obligations to ~~Article V hereof~~provide the Transition Services during the period that it or its Affiliates’ facilities are so shut down but shall use reasonable efforts to minimize each period of shutdown for such purpose and to schedule such shutdown so as not to inconvenience or disrupt the operations of Seller. (d) ~~The parties have agreed~~ Each of Seller and Newco appoint the following individuals, who shall serve as the coordinator for purposes of communicating with the other party regarding this Agreement and who shall be authorized to separate the Legal function of SVU and transition certain legal associates to Albertson’s over a period of up to ninety (90) days after the Effective Date (the “Legal Transition Period”). At the Effective Date, certain attorneys responsible for the provision of certain Services to Albertson’s (the “Transitioned Attorneys”) will transition to and become employed by Albertson’s at Albertson’s option. At some point during the Legal Transition Period, Albertson’s will have the option to make Qualifying Offers (as defined in the SPA) to some or all of an additional group of identified members of the SVU Legal function. During the Legal Transition Period, the parties will cooperate with respect to the transition of legal matters between them, and each of Albertson’s (but only with respect to the services provided by the Transitioned Attorneys and only to the extent historically provided to SVU) and SVU will provide legal services pursuant to Schedule 2 hereto, if needed, provided that (i) SVU may, in its discretion and at its expense, provide outside counsel (reasonably selected from a list of outside counsel used by Albertson’s prior to the Effective Date) in lieu of providing such legal services directly (it being understood that such outside counsel providing Services to Albertson’s hereunder will be acting act on behalf of his or her respective party as to matters pertaining to this Agreement: For Seller: For Newco: Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: Tomofumi Sekiyama Title: Director – Global Operations Title: Vice President, Business Operation Company: AT&T Japan Company: IIJ Global Solutions Phone: ▇▇-▇▇▇▇-▇▇▇▇ Phone: ▇▇-▇▇▇▇-▇▇▇▇ E-mail address: ▇▇▇▇▇▇@▇▇▇.▇▇▇ E-mail address: ▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇.▇▇ The coordinator shall coordinate with contact person(s) set out in the Schedules, as necessary. Each party shall notify the other in writing as to the name, address and ~~as counsel~~ telephone number of any replacement for ~~Albertson’s~~such designated coordinator, and ~~that (as between Albertson’s and SVU~~such contact person(s) Albertson’s will control the attorney-client relationship); (ii) neither party will in any case provide services with respect to commercial or other litigation that the other party has agreed to assume responsibility for, or to indemnify the other party or its Affiliates for, pursuant to the SPA (provided, however, that SVU will continue to cooperate in providing in-house litigation support (other than litigation management) to the extent historically provided by SVU to Albertson’s and Albertson’s acknowledges that during the Legal Transition Period in-house litigation support will continue to be provided to SVU by the remaining SVU legal function not hired by Albertson’s as of the Effective Date); (iii) SVU will not be responsible for providing legal services to Albertson’s in quantities that exceed the historical levels provided by SVU to Albertson’s; and (iv) each party will provide any reasonable and customary waiver of conflicts of interest or similar waiver reasonably requested by the other party or any substituted outside counsel in connection with the legal services provided pursuant to this Services Agreement, provided that no such waiver shall materially disadvantage the other party with respect to any matter handled by such counsel. Upon the elimination of legal services as Services under this Services Agreement, there will be a dollar-for-dollar reduction set out in the fees payable during the Initial Term equal to the salary and benefits of each employee that transfers employment to Albertson’s pursuant to a Qualifying Offer (as defined in the SPA) made in Albertson’s sole discretion, and, if necessary, the parties will execute a letter agreement confirming the reduction as soon as reasonably possible thereafterSchedules. (e) Similar to the legal transition referenced in Section 2.1(d), the parties have agreed to the elimination of additional Services originally contemplated to be provided by SVU pursuant to this Services Agreement by the employees of SVU and its Subsidiaries identified on Exhibit G. Upon the elimination of such Services from this Services Agreement, Albertson’s will receive credits against the fees payable pursuant to this Services Agreement as such credits are set forth on Exhibit G, and, if necessary, the parties will execute a letter agreement confirming the reduction as soon as reasonably practicable thereafter. (f) The parties agree to meet on or before September 20, 2013, to review the Services being provided and determine if there are any Services no longer required and which may be deleted from the Service schedules.

Appears in 1 contract

Sources: Stock Purchase Agreement (Internet Initiative Japan Inc)

SERVICES TO BE PROVIDED. (a) Notwithstanding anything to the contrary contained herein, other than as set forth on the applicable Schedule and subject to Sections 2.4 and 2.10 hereof, (i) the Services to be provided by SVU as Service Provider hereunder shall be limited to (A) the Services with respect to which it is listed as the Service Provider on Schedule 2 hereto, (B) as to the NAI business which Albertson’s is acquiring, the Services which SVU and its Affiliates have historically provided to the NAI-acquired business, and (C) the Services performed by SVU and its Affiliates for Albertson’s as of immediately prior to the date of the SPA; provided that any change in Services after the date of the SPA but prior to the Effective Date shall be approved Unless otherwise agreed by the ~~Steering Committee~~Parties, ~~(ii) the Services to be provided by Albertson’s as Service Provider hereunder~~ AT&T shall ~~be limited to the Services with respect to which it is listed as the Service Provider on Schedule 2 hereto, and (iii) in no event shall the Service Provider~~ be required to provide any other services to the Receiving Party. The parties acknowledge and agree that they have sought to identify all Services to be provided by the Service Provider under this Services Agreement on the Schedules hereto, but that if the Schedules do not include the Services performed immediately prior to the date of the SPA by the Service Provider, the parties shall cooperate after the Closing Date to amend and/or supplement the Schedules hereto from time to time to more accurately reflect such past practice; provided, however, that (i) in no event will the Service Provider be obligated to provide any Service which (A) is listed on Schedule 2 as “deleted” or indicated in any way as no longer required or (B) is indicated to be provided only on a temporary basis and such time period has lapsed, subject to the possible extension of such Service in accordance with Section 3.3, and (ii) Schedule 1 hereto sets forth the agreement of the parties with respect to procurement of goods for the Receiving Party and shall control that Service notwithstanding the past practices of the parties with respect to procurement of goods. (b) The Service Provider or its designees shall perform the Services only in a ~~manner, scope, nature and quality (such manner, scope, nature and quality, the “Applicable Service Level”)~~ manner that ~~is, in the case of SVU as the Service Provider, the same~~ is substantially similar in all material respects as to the manner in which such Services were performed ~~or to be performed by SVU and its Affiliates~~ for ~~Albertson’s as of immediately~~ the EasyLink Services business prior to the ~~Date of the SPA~~Agreement Date, or, where a specific service level has been provided, as set forth in the Schedules hereto and, in the case of Albertson’s as Service Provider, in the manner described on Schedule 2. For the avoidance of doubt, any change in service levels provided by the Service Provider to itself and ~~its Affiliates after the Date of the SPA~~ Swift shall ~~not affect the Applicable Service Level to be provided to the Receiving Party pursuant to this~~ use such Services ~~Agreement. Unless otherwise set forth herein or on the applicable Schedule, the Services provided hereunder shall be used by the Receiving Party~~ for substantially the same purposes and in substantially the same manner ~~(including~~ as ~~to volume, amount, level or frequency, as applicable) as~~ the EasyLink Services business had used such Services ~~were used by the Receiving Party as of immediately~~ prior to such date; provided, however, that in no event shall the ~~Date~~ scope of the ~~SPA~~Services required to be performed hereunder exceed that described in Annex A unless AT&T shall otherwise agree in writing. Notwithstanding the foregoing, the parties acknowledge and agree that (1) Albertson’s acquisition of the NAI business shall not be deemed an increase of volume, amount, level or frequency, that SVU shall provide the Services contemplated herein to the NAI business, and that SVU’s provision of services to the NAI business shall include the services historically provided by SVU or its Affiliates to NAI (or which NAI provided to itself), as well as the Services identified on Schedule 2, and (2) Albertson’s request for Services for New Stores as defined in Exhibit A shall not constitute an increase in volume, amount, level of frequency of Services. The Service Provider AT&T shall act under this Transition Services Agreement solely as an independent contractor and not as an agent of Swift. (b) If it is necessary for AT&T to increase staffing or ~~employee~~ acquire equipment or make any investments or capital expenditures to accommodate an increase in the use of any ~~other party or any~~ Service beyond the level of use of such ~~party’s Affiliates. For the purposes~~ Service as specified in Annex A (or if no level of ~~clarity~~use is specified in Annex A, the ~~parties acknowledge and agree that if and~~ level of use of such Service by the EasyLink Services business immediately prior to the ~~extent~~ Agreement Date), as a result of an increase in volume of the ~~Service Provider changes systems and processes used~~ EasyLink Services business or a change in the ~~course~~ manner in which the EasyLink Services business is being conducted, AT&T shall inform Swift in writing of ~~its~~ such increase in staffing level, equipment acquisitions, investments or capital expenditures before any such cost or expense is incurred. Upon mutual agreement of the Parties as to the necessity of any such increase, Swift (unless Swift and AT&T shall otherwise agree in writing) shall advance to AT&T an amount equal to the actual costs and expenses to be incurred in connection therewith. If such mutual agreement is not reached, AT&T's obligation to provide or cause to be provided such Service shall be limited to the level of use of such Service as specified in Annex A (or if no level of use is specified in Annex A, the level of use of such Service by the EasyLink Services business ~~for its own account~~ immediately prior to the ~~Service Provider shall not permit such changes to degrade the Applicable Service Level~~Agreement Date). (c) ~~The~~ AT&T shall have the right to halt provision of the Services ~~by the Service Provider shall be subject to~~ temporarily for any reason specified in Article V (Force Majeure) hereof. (d) ~~The parties have agreed~~ Swift agrees to ~~separate~~ use its reasonable good faith efforts to reduce or eliminate its dependency on the Legal function of SVU and transition certain legal associates to Albertson’s over a period of up to ninety (90) days after the Effective Date (the “Legal Transition Period”). At the Effective Date, certain attorneys responsible for the provision of certain Services to Albertson’s (the “Transitioned Attorneys”) will transition to and become employed by Albertson’s at Albertson’s option. At some point during the Legal Transition Period, Albertson’s will have the option to make Qualifying Offers (as defined in the SPA) to some or all of an additional group of identified members of the SVU Legal function. During the Legal Transition Period, the parties will cooperate with respect to the transition of legal matters between them, and each of Albertson’s (but only with respect to the services provided by the Transitioned Attorneys and only to the extent historically provided to SVU) and SVU will provide legal services pursuant to Schedule 2 hereto, if needed, provided that (i) SVU may, in its discretion and at its expense, provide outside counsel (reasonably selected from a list of outside counsel used by Albertson’s prior to the Effective Date) in lieu of providing such legal services directly (it being understood that such outside counsel providing Services to Albertson’s hereunder will be acting on behalf of and as counsel for Albertson’s, and that (as between Albertson’s and SVU) Albertson’s will control the attorney-client relationship); (ii) neither party will in any case provide services with respect to commercial or other litigation that the other party has agreed to assume responsibility for, or to indemnify the other party or its Affiliates for, pursuant to the SPA (provided, however, that SVU will continue to cooperate in providing in-house litigation support (other than litigation management) to the extent historically provided by SVU to Albertson’s and Albertson’s acknowledges that during the Legal Transition Period in-house litigation support will continue to be provided to SVU by the remaining SVU legal function not hired by Albertson’s as of the Effective Date); (iii) SVU will not be responsible for providing legal services to Albertson’s in quantities that exceed the historical levels provided by SVU to Albertson’s; and (iv) each party will provide any reasonable and customary waiver of conflicts of interest or similar waiver reasonably requested by the other party or any substituted outside counsel in connection with the legal services provided pursuant to this Services Agreement, provided that no such waiver shall materially disadvantage the other party with respect to any matter handled by such counsel. Upon the elimination of legal services as Services under this Services Agreement, there will be a dollar-for-dollar reduction in the fees payable during the Initial Term equal to the salary and benefits of each employee that transfers employment to Albertson’s pursuant to a Qualifying Offer (as defined in the SPA) made in Albertson’s sole discretion, and, if necessary, the parties will execute a letter agreement confirming the reduction as soon as reasonably possible thereafter. (e) Similar to the legal transition referenced in Section 2.1(d), the parties have agreed to the elimination of additional Services originally contemplated to be provided by SVU pursuant to this Services Agreement by the employees of SVU and its Subsidiaries identified on Exhibit G. Upon the elimination of such Services from this Services Agreement, Albertson’s will receive credits against the fees payable pursuant to this Services Agreement as such credits are set forth on Exhibit G, and, if necessary, the parties will execute a letter agreement confirming the reduction as soon as is reasonably practicable ~~thereafter~~consistent with Section 7. (f) The parties agree to meet on or before September 20, 2013, to review the Services being provided and determine if there are any Services no longer required and which may be deleted from the Service schedules.

Appears in 1 contract

Sources: Transition Services Agreement (Mail Com Inc)

SERVICES TO BE PROVIDED. (a) ~~Notwithstanding anything~~ Unless otherwise agreed by the Parties (including to the ~~contrary contained herein, other than as set forth on~~ extent specified in the applicable ~~Schedule and subject to Sections 2.4 and 2.10 hereof~~Schedule), (i) the ~~Services to be provided by SVU as~~ Service ~~Provider hereunder~~ Providers shall be limited to (A) the Services with respect to which it is listed as the Service Provider on Schedule 2 hereto, (B) as to the NAI business which Albertson’s is acquiring, the Services which SVU and its Affiliates have historically provided to the NAI-acquired business, and (C) the Services performed by SVU and its Affiliates for Albertson’s as of immediately prior to the date of the SPA; provided that any change in Services after the date of the SPA but prior to the Effective Date shall be approved by the Steering Committee, (ii) the Services to be provided by Albertson’s as Service Provider hereunder shall be limited to the Services with respect to which it is listed as the Service Provider on Schedule 2 hereto, and (iii) in no event shall the Service Provider be required to provide any other services to the Receiving Party. The parties acknowledge and agree that they have sought to identify all Services to be provided by the Service Provider under this Services Agreement on the Schedules hereto, but that if the Schedules do not include the Services performed immediately prior to the date of the SPA by the Service Provider, the parties shall cooperate after the Closing Date to amend and/or supplement the Schedules hereto from time to time to more accurately reflect such past practice; provided, however, that (i) in no event will the Service Provider be obligated to provide any Service which (A) is listed on Schedule 2 as “deleted” or indicated in any way as no longer required or (B) is indicated to be provided only on a temporary basis and such time period has lapsed, subject to the possible extension of such Service in accordance with Section 3.3, and (ii) Schedule 1 hereto sets forth the agreement of the parties with respect to procurement of goods for the Receiving Party and shall control that Service notwithstanding the past practices of the parties with respect to procurement of goods. (b) The Service Provider or its designees shall perform the Services only in a ~~manner, scope, nature and quality (such manner, scope, nature and quality, the “Applicable Service Level”)~~ manner that ~~is, in the case of SVU as the Service Provider, the same~~ is similar in all material respects as to the manner in which such Services were performed ~~or to be performed by SVU and its Affiliates for Albertson’s as of immediately prior~~ from March 31, 2004, to the ~~Date of the SPA~~Closing Date, or, where a specific service level has been provided, as set forth in the Schedules hereto and, in the case of Albertson’s as Service Provider, in the manner described on Schedule 2. For the avoidance of doubt, any change in service levels provided by the Service Provider to itself and its Affiliates after the Date of the SPA shall not affect the Applicable Service Level to be provided to the Receiving Party pursuant to this Services Agreement. Unless otherwise set forth herein or on the applicable Schedule, (ii) the Services ~~provided hereunder~~ shall be used ~~by the Receiving Party~~ for substantially the same purposes and in substantially the same manner (including as to volume, amount, level or frequency, as applicable) as the Services have been used from March 31, 2004, to such ~~Services were used by~~ date; provided, however, that the ~~Receiving Party as~~ applicable Schedule shall control the scope of ~~immediately prior~~ the Service to be performed (to the Date of the SPA. Notwithstanding the foregoing, the parties acknowledge and agree that (1) Albertson’s acquisition of the NAI business shall not be deemed an increase of volume, amount, level or frequency, that SVU shall provide the Services contemplated herein to the NAI business, and that SVU’s provision of services to the NAI business shall include the services historically extent provided ~~by SVU or its Affiliates to NAI (or which NAI provided to itself~~therein), ~~as well as~~ unless otherwise agreed in writing. Each Party and the Services identified on Schedule 2, and (2) Albertson’s request for Services for New Stores as defined in Exhibit A shall not constitute an increase in volume, amount, level of frequency of Services. The Service ~~Provider~~ Providers shall act under this Services Agreement solely as an independent contractor and not as an agent or employee of any other ~~party~~ Party or any of such ~~party’s~~ Party's Affiliates. For the purposes of clarity, the parties acknowledge and agree that if and to the extent the Service Provider changes systems and processes used in the course of its business for its own account the Service Provider shall not permit such changes to degrade the Applicable Service Level. (cb) The provision of Services by ~~the~~ Service ~~Provider~~ Providers shall be subject to Article V hereof. (c) Each Party agrees to use its reasonable efforts to reduce or eliminate its dependency on the Services as soon as is reasonably practicable; provided that a breach of this Section 3.01(c) shall not affect a Service Provider's obligation to provide any Service through the term applicable to such Service. (d) ~~The parties have agreed~~ Subject to ~~separate~~ the ~~Legal function~~ terms of ~~SVU and transition certain legal associates~~ the applicable Schedule, if it is necessary for any Service Provider to ~~Albertson’s over a period of up~~ increase staffing or acquire equipment or make any investments or capital expenditures in order to ninety (90) days after the Effective Date (the “Legal Transition Period”). At the Effective Date, certain attorneys responsible for the provision of certain Services to Albertson’s (the “Transitioned Attorneys”) will transition to and become employed by Albertson’s at Albertson’s option. At some point during the Legal Transition Period, Albertson’s will have the option to make Qualifying Offers (as defined accommodate an increase in the ~~SPA)~~ use of any Service beyond the level of use of such Service by Seller from March 31, 2004, to ~~some or all~~ the Closing Date as a result of an ~~additional group of identified members~~ increase in volume of the ~~SVU Legal function~~business of the Receiving Party or a change in the manner in which the business of the Receiving Party is being conducted, such Service Provider shall inform the Receiving Party in writing of such increase in staffing level, equipment acquisitions, investments or capital expenditures before any such cost or expense is incurred. ~~During~~ Upon mutual agreement of the ~~Legal Transition Period~~Parties as to the necessity of any such increase, the ~~parties will cooperate with respect~~ Receiving Party (unless Purchaser and Seller shall otherwise agree in writing) shall advance to the ~~transition of legal matters between them, and each of Albertson’s (but only with respect~~ relevant Service Providers an amount equal to the ~~services provided by~~ actual costs and expenses to be incurred in connection therewith. If such mutual agreement is not reached, the ~~Transitioned Attorneys and only~~ Service Provider's obligation to ~~the extent historically provided to SVU) and SVU will~~ provide legal services pursuant to Schedule 2 hereto, if needed, provided that (i) SVU may, in its discretion and at its expense, provide outside counsel (reasonably selected from a list of outside counsel used by Albertson’s prior to the Effective Date) in lieu of providing such legal services directly (it being understood that such outside counsel providing Services to Albertson’s hereunder will be acting on behalf of and as counsel for Albertson’s, and that (as between Albertson’s and SVU) Albertson’s will control the attorney-client relationship); (ii) neither party will in any case provide services with respect to commercial or other litigation that the other party has agreed to assume responsibility for, or to indemnify the other party or its Affiliates for, pursuant to the SPA (provided, however, that SVU will continue to cooperate in providing in-house litigation support (other than litigation management) to the extent historically provided by SVU to Albertson’s and Albertson’s acknowledges that during the Legal Transition Period in-house litigation support will continue cause to be provided such Service shall be limited to ~~SVU by~~ the ~~remaining SVU legal function not hired by Albertson’s~~ level of use of such Service from March 31, 2004, to the Closing Date (or as of the Effective Date); (iii) SVU will not be responsible for providing legal services to Albertson’s in quantities that exceed the historical levels provided by SVU to Albertson’s; and (iv) each party will provide any reasonable and customary waiver of conflicts of interest or similar waiver reasonably requested by the other party or any substituted outside counsel in connection with the legal services provided pursuant to this Services Agreement, provided that no such waiver shall materially disadvantage the other party with respect to any matter handled by such counsel. Upon the elimination of legal services as Services under this Services Agreement, there will be a dollar-for-dollar reduction described in the fees payable during the Initial Term equal to the salary and benefits of each employee that transfers employment to Albertson’s pursuant to a Qualifying Offer (as defined in the SPA) made in Albertson’s sole discretion, and, if necessary, the parties will execute a letter agreement confirming the reduction as soon as reasonably possible thereafterapplicable Schedule). (e) ~~Similar~~ The Parties will use good-faith efforts to reasonably cooperate with each other in all matters relating to the ~~legal transition referenced in Section 2.1(d)~~provision and receipt of Services. Such cooperation shall include obtaining, ~~the parties have agreed~~ all consents, licenses or approvals necessary to permit each party to perform its obligations hereunder. In respect of its obligations hereunder, each Party covenants and warrants to the ~~elimination of additional Services originally contemplated to~~ other Party that all such obligations shall be provided by SVU pursuant to this Services Agreement by the employees of SVU and its Subsidiaries identified on Exhibit G. Upon the elimination of such Services from this Services Agreement, Albertson’s will receive credits against the fees payable pursuant to this Services Agreement as such credits are set forth on Exhibit G, and, if necessary, the parties will execute a letter agreement confirming the reduction as soon as reasonably practicable thereafterperformed in compliance with all material applicable Law. (f) The parties agree to meet on or before September 20, 2013, to review the Services being provided and determine if there are any Services no longer required and which may be deleted from the Service schedules.

Appears in 1 contract

Sources: Transition Services Agreement (Wix Filtration Media Specialists, Inc.)

SERVICES TO BE PROVIDED. ~~(a) Notwithstanding anything~~ The categories of Services shall include the services as described on Schedule A. The Parties agree that the details of the specific Services to ~~the contrary contained herein~~be provided hereunder, ~~other than~~ and certain terms related thereto shall be as set forth on Schedules A-l to A- attached hereto and shall cooperate with each other to ensure appropriate coordination of such Services. Unless otherwise agreed by the applicable Schedule and subject to Sections 2.4 and 2.10 hereof, (i) the Services to be provided by SVU as Service Provider hereunder shall be limited to (A) the Services with respect to which it is listed as the Service Provider on Schedule 2 hereto, (B) as to the NAI business which Albertson’s is acquiringParties, the Services ~~which SVU and its Affiliates have historically provided to the NAI-acquired business, and (C) the Services~~ shall be performed by ~~SVU~~ Buyer for Seller at a quality level and ~~its Affiliates for Albertson’s as of immediately prior to~~ in a manner that are substantially the date of the SPA; provided that any change in Services after the date of the SPA but prior to the Effective Date shall be approved by the Steering Committee, (ii) the Services to be provided by Albertson’s as Service Provider hereunder shall be limited to the Services with respect to which it is listed same as the ~~Service Provider on Schedule 2 hereto,~~ quality level and (iii) in no event shall the Service Provider be required to provide any other services to the Receiving Party. The parties acknowledge and agree that they have sought to identify all Services to be provided by the Service Provider under this Services Agreement on the Schedules hereto, but that if the Schedules do not include the Services performed immediately prior to the date of the SPA by the Service Provider, the parties shall cooperate after the Closing Date to amend and/or supplement the Schedules hereto from time to time to more accurately reflect such past practice; provided, however, that (i) in no event will the Service Provider be obligated to provide any Service which (A) is listed on Schedule 2 as “deleted” or indicated in any way as no longer required or (B) is indicated to be provided only on a temporary basis and such time period has lapsed, subject to the possible extension of such Service in accordance with Section 3.3, and (ii) Schedule 1 hereto sets forth the agreement of the parties with respect to procurement of goods for the Receiving Party and shall control that Service notwithstanding the past practices of the parties with respect to procurement of goods. (b) The Service Provider or its designees shall perform the Services only in a manner, scope, nature and quality (such manner, scope, nature and quality, the “Applicable Service Level”) that is, in the case of SVU as the Service Provider, the same in all material respects as the manner in which such Services were ~~performed or to be~~ generally performed by ~~SVU and its Affiliates for Albertson’s as of immediately~~ Seller prior to the ~~Date~~ date of the SPA, or, where a specific service level has been provided, as set forth in the Schedules hereto and, in the case of Albertson’s as Service Provider, in the manner described on Schedule 2. For the avoidance of doubt, any change in service levels provided by the Service Provider to itself and its Affiliates after the Date of the SPA shall not affect the Applicable Service Level to be provided to the Receiving Party pursuant to this Services Agreement~~. Unless otherwise set forth herein or on the applicable Schedule~~, ~~the~~ and Seller shall use such Services ~~provided hereunder shall be used by the Receiving Party~~ for substantially the same purposes and in substantially the same manner ~~(including~~ as ~~to volume, amount, level or frequency, as applicable) as~~ the Acquired Business had provided such Services ~~were used by the Receiving Party as of immediately~~ prior to the ~~Date of the SPA. Notwithstanding the foregoing~~date hereof; provided, ~~the parties acknowledge and agree that (1) Albertson’s acquisition of the NAI business shall not be deemed an increase of volume, amount, level or frequency~~however, that ~~SVU~~ Buyer shall ~~provide~~ be entitled to obtain such Services from a third party during the term of this Services Agreement. No modifications to the Services ~~contemplated herein~~ by Buyer however, will result in a material change in the level and type of Services provided. Buyer will provide Seller with sixty (60) days' prior written notice of its intention to do so. Buyer shall use reasonable efforts to obtain such licenses or other authority as shall be necessary for Buyer to grant Seller access to or use of any restricted software used in the ~~NAI business,~~ performance of Services by Buyer hereunder. Seller shall bear all of Buyer's costs and ~~that SVU’s provision of services to the NAI business shall include the services historically provided by SVU~~ expenses associated with obtaining such licenses or its Affiliates to NAI (or which NAI provided to itself), as well as the Services identified on Schedule 2, and (2) Albertson’s request for Services for New Stores as defined in Exhibit A shall not constitute an increase in volume, amount, level of frequency of Servicesother authority. ~~The Service Provider~~ Buyer shall act under this Services Agreement solely as an independent contractor and not as an agent ~~or employee~~ of ~~any other party or any of such party’s Affiliates~~Seller. For the purposes of clarity, the parties acknowledge and agree that if and to the extent the Service Provider changes systems and processes used in the course of its business for its own account the Service Provider shall not permit such changes to degrade the Applicable Service Level. (c) The provision of Services by the Service Provider Seller shall be ~~subject~~ entitled to ~~Article V hereof. (d) The parties have agreed~~ utilize those Services, and the levels thereof that it needs. There is no obligation of Seller to separate the Legal function of SVU and transition certain legal associates to Albertson’s over a period of up to ninety (90) days after the Effective Date (the “Legal Transition Period”). At the Effective Date, certain attorneys responsible for the provision of certain Services to Albertson’s (the “Transitioned Attorneys”) will transition to and become employed by Albertson’s at Albertson’s option. At some point during the Legal Transition Period, Albertson’s will have the option to make Qualifying Offers (as defined in the SPA) to some utilize any or all of ~~an additional group of identified members of~~ the SVU Legal function. During the Legal Transition Period, the parties will cooperate with respect to the transition of legal matters between them, and each of Albertson’s (but only with respect to the services Services provided by ~~the Transitioned Attorneys and only to the extent historically provided to SVU) and SVU will provide legal services pursuant to Schedule 2 hereto, if needed, provided that (i) SVU may,~~ Buyer in its discretion and at its expense, provide outside counsel (reasonably selected from a list of outside counsel used by Albertson’s prior to the Effective Date) in lieu of providing such legal services directly (it being understood that such outside counsel providing accordance with this Services ~~to Albertson’s hereunder will be acting on behalf of and as counsel for Albertson’s, and that (as between Albertson’s and SVU) Albertson’s will control the attorney-client relationship)~~Agreement; (ii) neither party will in any case provide services with respect to commercial or other litigation that the other party has agreed to assume responsibility for, or to indemnify the other party or its Affiliates for, pursuant to the SPA (provided, however, that ~~SVU will continue~~ in the event Seller elects not to ~~cooperate in providing in-house litigation support (other than litigation management)~~ use a particular Service, it shall notify Buyer prior to the ~~extent historically provided by SVU to Albertson’s~~ Closing Date and Albertson’s acknowledges that during the Legal Transition Period in-house litigation support will continue to be provided to SVU by the remaining SVU legal function not hired by Albertson’s as of the Effective Date); (iii) SVU will not be responsible for providing legal services to Albertson’s in quantities that exceed the historical levels provided by SVU to Albertson’s; and (iv) each party will provide any reasonable and customary waiver of conflicts of interest or similar waiver reasonably requested by the other party or any substituted outside counsel in connection with the legal services provided pursuant to this Services Agreement, provided that Buyer shall have no ~~such waiver shall materially disadvantage the other party~~ further obligations hereunder with respect to ~~any matter handled by~~ such counsel. Upon the elimination of legal services as Services under this Services Agreement, there will be a dollar-for-dollar reduction in the fees payable during the Initial Term equal to the salary and benefits of each employee that transfers employment to Albertson’s pursuant to a Qualifying Offer (as defined in the SPA) made in Albertson’s sole discretion, and, if necessary, the parties will execute a letter agreement confirming the reduction as soon as reasonably possible thereafterService. (e) Similar to the legal transition referenced in Section 2.1(d), the parties have agreed to the elimination of additional Services originally contemplated to be provided by SVU pursuant to this Services Agreement by the employees of SVU and its Subsidiaries identified on Exhibit G. Upon the elimination of such Services from this Services Agreement, Albertson’s will receive credits against the fees payable pursuant to this Services Agreement as such credits are set forth on Exhibit G, and, if necessary, the parties will execute a letter agreement confirming the reduction as soon as reasonably practicable thereafter. (f) The parties agree to meet on or before September 20, 2013, to review the Services being provided and determine if there are any Services no longer required and which may be deleted from the Service schedules.

Appears in 1 contract

Sources: Asset Purchase Agreement (Oxford Automotive Inc)

SERVICES TO BE PROVIDED. (a) Notwithstanding anything to the contrary contained herein, other than as set forth on the applicable Schedule and subject to Sections 2.4 and 2.10 hereof, (i) the Services to be provided by SVU as Service Provider hereunder shall be limited to (A) the Services with respect to which it is listed as the Service Provider on Schedule 2 hereto, (B) as to the NAI business which Albertson’s LLC is acquiring, the Services which SVU and its Affiliates have historically provided to the NAI-acquired business, and (C) the Services performed by SVU and its Affiliates for New Albertson’s as of immediately prior to the date of the SPA; provided that any change in Services after the date of the SPA but prior to the Effective Date shall be approved by the Steering ~~Committee,~~ Committee (ii) the Services to be provided by New Albertson’s as Service Provider hereunder shall be limited to the Services with respect to which it is listed as the Service Provider on Schedule 2 hereto, and (iii) in no event shall the Service Provider be required to provide any other services to the Receiving Party. The parties acknowledge and agree that they have sought to identify all Services to be provided by the Service Provider under this Services Agreement on the Schedules hereto, but that if the Schedules do not include the Services performed immediately prior to the date of the SPA by the Service Provider, the parties shall cooperate after the Closing Date to amend and/or supplement the Schedules hereto from time to time to more accurately reflect such past practice; provided, however, that (i) in no event will the Service Provider be obligated to provide any Service which (A) is listed on Schedule 2 as “deleted” or indicated in any way as no longer required or (B) is indicated to be provided only on a temporary basis and such time period has lapsed, subject to the possible extension of such Service in accordance with Section 3.3, and (ii) Schedule 1 hereto sets forth the agreement of the parties with respect to procurement of goods for the Receiving Party and shall control that Service notwithstanding the past practices of the parties with respect to procurement of goods. (b) The Service Provider or its designees shall perform the Services only in a manner, scope, nature and quality (such manner, scope, nature and quality, the “Applicable Service Level”) that is, in the case of SVU as the Service Provider, the same in all material respects as the manner in which such Services were performed or to be performed by SVU and its Affiliates for New Albertson’s as of immediately prior to the Date of the SPA, or, where a specific service level has been provided, as set forth in the Schedules hereto and, in the case of New Albertson’s as Service Provider, in the manner described on Schedule 2. For the avoidance of doubt, any change in service levels provided by the Service Provider to itself and its Affiliates after the Date of the SPA shall not affect the Applicable Service Level to be provided to the Receiving Party pursuant to this Services Agreement. Unless otherwise set forth herein or on the applicable Schedule, the Services provided hereunder shall be used by the Receiving Party for substantially the same purposes and in substantially the same manner (including as to volume, amount, level or frequency, as applicable) as such Services were used by the Receiving Party as of immediately prior to the Date of the SPA. Notwithstanding the foregoing, the parties acknowledge and agree that (1) ~~Albertson’s~~ the acquisition of the NAI business by Albertson’s LLC shall not be deemed an increase of volume, amount, level or frequency, that SVU shall provide the Services contemplated herein to the NAI business, and that SVU’s provision of services to the NAI business shall include the services historically provided by SVU or its Affiliates to NAI (or which NAI provided to itself), as well as the Services identified on Schedule 2, and (2) New Albertson’s request for Services for New Stores as defined in Exhibit A shall not constitute an increase in volume, amount, level of frequency of Services. The Service Provider shall act under this Services Agreement solely as an independent contractor and not as an agent or employee of any other party or any of such party’s Affiliates. For the purposes of clarity, the parties acknowledge and agree that if and to the extent the Service Provider changes systems and processes used in the course of its business for its own account the Service Provider shall not permit such changes to degrade the Applicable Service Level. (c) The provision of Services by the Service Provider shall be subject to Article V hereof. (d) ~~The parties have agreed~~ SVU will provide legal services pursuant to ~~separate the Legal function of SVU and transition certain legal associates to Albertson’s over~~ Schedule 2 hereto, if needed, for a period of up to ninety (90) days after the Effective ~~Date (the “Legal Transition Period”). At the Effective~~ Date, certain attorneys responsible for the provision of certain Services to Albertson’s (the “Transitioned Attorneys”) will transition to and become employed by Albertson’s at Albertson’s option. At some point during the Legal Transition Period, Albertson’s will have the option to make Qualifying Offers (as defined in the SPA) to some or all of an additional group of identified members of the SVU Legal function. During the Legal Transition Period, the parties will cooperate with respect to the transition of legal matters between them, and each of Albertson’s (but only with respect to the services provided by the Transitioned Attorneys and only to the extent historically provided to SVU) and SVU will provide legal services pursuant to Schedule 2 hereto, if needed, provided that (i) SVU may, in its discretion and at its expense, provide outside counsel (reasonably selected from a list of outside counsel used by New Albertson’s prior to the Effective Date) in lieu of providing such legal services directly (it being understood that such outside counsel providing Services to New Albertson’s hereunder will be acting on behalf of and as counsel for New Albertson’s, and that (as between New Albertson’s and SVU) New Albertson’s will control the attorney-client relationship); (ii) ~~neither party~~ SVU will not in any case provide services with respect to commercial or other litigation that ~~the other party~~ New Albertson’s has agreed to assume responsibility for, or to indemnify ~~the other party~~ SVU or its Affiliates for, pursuant to the SPA (provided, however, that SVU will continue to cooperate in providing in-house litigation support (other than litigation management) to the extent historically provided by SVU to New Albertson’s and Albertson’s acknowledges that during the Legal Transition Period in-house litigation support will continue to be provided to SVU by the remaining SVU legal function not hired by Albertson’s as of the Effective Date’s); (iii) SVU will not be responsible for providing legal services to New Albertson’s in quantities that exceed the historical levels provided by SVU to New Albertson’s; and (iv) ~~each party~~ New Albertson’s will provide any reasonable and customary waiver of conflicts of interest or similar waiver reasonably requested by ~~the other party~~ SVU or any substituted outside counsel in connection with the legal services provided pursuant to this Services Agreement, provided that no such waiver shall materially disadvantage ~~the other party~~ New Albertson’s as compared to SVU with respect to any matter handled by such counsel. Upon the elimination of legal services as Services under this Services Agreement, there will be a dollar-for-dollar reduction in the fees payable during the Initial Term equal to the salary and benefits of each employee that transfers employment to New Albertson’s pursuant to a Qualifying Offer (as defined in the SPA) made in New Albertson’s sole discretion, ~~and, if necessary,~~ and the parties will execute a letter agreement confirming the reduction as soon as reasonably possible thereafter. (e) Similar to the legal transition referenced in Section 2.1(d), the parties have agreed to the elimination of additional Services originally contemplated to be provided by SVU pursuant to this Services Agreement by the employees of SVU and its Subsidiaries identified on Exhibit G. Upon the elimination of such Services from this Services Agreement, Albertson’s will receive credits against the fees payable pursuant to this Services Agreement as such credits are set forth on Exhibit G, and, if necessary, the parties will execute a letter agreement confirming the reduction as soon as reasonably practicable thereafter. (f) The parties agree to meet on or before September 20, 2013, to review the Services being provided and determine if there are any Services no longer required and which may be deleted from the Service schedules.

Appears in 1 contract

Sources: Transition Services Agreement (Supervalu Inc)

SERVICES TO BE PROVIDED. 1.1 AICL shall furnish or cause to be furnished (in the same manner and reasonably of the same quality as such services and facilities are furnished to its affiliates) services and facilities to the Companies (which, to the extent not specified below to be subject to separate billing by AICL will be provided in Bermuda) required by the Companies in the ordinary course of the business of the Companies which are described and classified as follows: (a) ~~Notwithstanding anything~~ office space in Bermuda not to exceed 7,508 usable square feet, which space may be owned by AICL or one of its affiliates or may be leased from others, and which shall include as a part thereof cleaning, elevator service, repair and engineering services, provided that the ~~contrary contained herein,~~ Companies shall have no right to use the said office space for any purpose other than as office space for their own respective business purposes and shall not licence, let or otherwise demise (or purport to) the said office space to any person, company or other entity ; (b) the information technology services set ~~forth~~ out in Part A of Schedule 1 hereto; (c) payroll and pension administration services as described in Schedule 2 hereto (provided that pension plan portfolio management services will, to the extent required by either of the Companies, be separately contracted for by AICL and billed to the Companies); (d) human resource services as described in Schedule 3 hereto; (e) making travel arrangements for overseas travel by employees of the Company for business purposes and making hotel bookings in each case, as required; (f) a purchasing department , provided that, to the extent that any supplies are purchased by AICL on behalf of either of the ~~applicable Schedule~~ Companies, the cost of such supplies shall be billed to the Companies; (g) telephone services (provided that the cost of such services shall additionally be billed to the Companies); (h) printing, reproduction and ~~subject~~ document binding services (provided that the cost of such services shall additionally be billed to ~~Sections 2.4 and 2.10 hereof,~~ the Companies); and (i) a mail and communications department, including, but not limited to, messenger, mail handling and postage services (provided that the ~~Services~~ cost of such services shall additionally be billed to the Companies). Any other services or departments found to be necessary or desirable by either of the Companies should be provided by ~~SVU as Service Provider hereunder~~ AICL only after separate negotiation and agreement by all parties hereto. The additional costs of any such other services or departments shall be ~~limited~~ allocated in an equitable manner to ~~(A)~~ be agreed upon by the ~~Services with respect to which it is listed as the Service Provider on Schedule 2~~ parties hereto~~, (B) as~~ . 1.2 AICL hereby represents and warrants to the ~~NAI business which Albertson’s is acquiring, the Services which SVU and its Affiliates have historically~~ Companies that any software licensed or otherwise provided to the ~~NAI~~Companies hereunder by AICL shall not infringe upon the copyrights of any other person . With respect to any computer software provided to either of the Companies pursuant to Section 1.1 hereof ("AICL Computer Software"), each of the Companies acknowledges that it hereby accepts from AICL the non-~~acquired business~~exclusive, non-transferable, non-assignable right to use such AICL Computer Software solely and exclusively in connection with its insurance operations, all in accordance with the further terms and conditions of the Agreement. Any and all copyrights, of common law or statutory rights and powers, relating to any such AICL Computer Software (or any operating manuals relating thereto) shall be and remain at all times the sole and exclusive property of AICL, and the right of the Companies to use such AICL Computer Software shall be solely as a licensee of AICL pursuant hereto. Such AICL Computer Software may not be copied, duplicated or otherwise reproduced, in whole or in part, without the prior written consent of AICL, and nothing there from may be disclosed to any person other than those to whom such disclosure is authorized by AICL. Such AICL Computer Software shall be returned to AICL upon termination of this Agreement and, in any event, upon completion of the use for which they are hereby provided. 1.2.1 The Companies hereby agree that they will establish, within eighteen (C18) months from the ~~Services performed by SVU and its Affiliates for Albertson’s as of immediately prior to the~~ effective date of this Agreement, their own IT environment and systems (including network, internet, email and disaster recovery) and that the ~~SPA; provided that~~ costs associated therewith, including without limitation costs of or relating to (i) any ~~change in Services after the date of the SPA~~ hardware, including but ~~prior~~ not limited to ~~the Effective Date shall be approved by the Steering Committee~~servers and photocopiers, (ii) ~~the Services to~~ non-AICL technical support, (iii) software or other licenses that may be ~~provided by Albertson’s as Service Provider hereunder shall be limited to the Services with respect to which it is listed as the Service Provider on Schedule 2 hereto~~required, and (~~iii~~iv) internet access, data communication lines, telephone lines and maintenance contracts, will be for the account of the Companies. Notwithstanding the provisions of this Section 1.2.1, unless otherwise specified in ~~no event~~ this Agreement, the costs and expenses associated with the provision by AICL of the services set out in Part A of Schedule 1 hereto, shall be for the ~~Service Provider be required to provide any other services~~ account of AICL until such time as the Companies establish their own IT environment as contemplated hereby at which time the costs and expenses relating to the ~~Receiving Party~~services listed under the heading "Miscellaneous Services" shall be for the account of the Companies. 1.3 With respect to any equipment, furniture or other furnishings or fixtures (collectively, "Equipment") provided to either of the Companies pursuant to Section 1.1 hereof, each of the Companies acknowledges that such Equipment is, and at all times during the term of this Agreement and thereafter shall remain, the property of AICL and neither of the Companies shall have any right, title of interest therein or thereto except as provided herein. Upon AICL's request, the Companies shall affix and keep in a prominent place on each item of Equipment labels, plates or other markings indicating that the Equipment is owned by AICL. The ~~parties acknowledge~~ Companies shall not make any modifications, alterations, additions or improvements to the Equipment without AICL's prior written consent. All such additions and improvements shall belong to AICL. The Equipment shall remain personal property of AICL regardless of its affixation to any realty. The Companies shall keep the Equipment at the office space provided to the Companies by AICL pursuant to Section 1.1 hereof and, unless otherwise agreed to by AICL in writing, shall not remove any of the same there from without AICL's prior written consent. The Companies covenant and agree ~~that they have sought~~ to identify all Services to be provided by the Service Provider under this Services Agreement on the Schedules hereto, but that if the Schedules do not include the Services performed immediately prior to the date of the SPA by the Service Provider, the parties shall cooperate after the Closing Date to amend and/or supplement the Schedules hereto from time to time to more accurately reflect such past practice; provided, however, that (i) keep the Equipment in ~~no event will the Service Provider be obligated~~ good repair (reasonable wear and tear excepted) and comply with all laws, ordinances, regulations or requirements of any governmental authority relating to ~~provide any Service which (A) is listed on Schedule 2 as “deleted”~~ its installation, possession, use or indicated in any way as no longer required or (B) is indicated to be provided only on a temporary basis and such time period has lapsed, subject to the possible extension of such Service in accordance with Section 3.3, maintenances and (ii) ~~Schedule 1 hereto sets forth~~ keep the ~~agreement~~ Equipment free and clear of ~~the parties with respect to procurement of goods for the Receiving Party~~ all liens and ~~shall control that Service notwithstanding the past practices of the parties with respect to procurement of goods~~encumbrances. (b) The Service Provider or its designees shall perform the Services only in a manner, scope, nature and quality (such manner, scope, nature and quality, the “Applicable Service Level”) that is, in the case of SVU as the Service Provider, the same in all material respects as the manner in which such Services were performed or to be performed by SVU and its Affiliates for Albertson’s as of immediately prior to the Date of the SPA, or, where a specific service level has been provided, as set forth in the Schedules hereto and, in the case of Albertson’s as Service Provider, in the manner described on Schedule 2. For the avoidance of doubt, any change in service levels provided by the Service Provider to itself and its Affiliates after the Date of the SPA shall not affect the Applicable Service Level to be provided to the Receiving Party pursuant to this Services Agreement. Unless otherwise set forth herein or on the applicable Schedule, the Services provided hereunder shall be used by the Receiving Party for substantially the same purposes and in substantially the same manner (including as to volume, amount, level or frequency, as applicable) as such Services were used by the Receiving Party as of immediately prior to the Date of the SPA. Notwithstanding the foregoing, the parties acknowledge and agree that (1) Albertson’s acquisition of the NAI business shall not be deemed an increase of volume, amount, level or frequency, that SVU shall provide the Services contemplated herein to the NAI business, and that SVU’s provision of services to the NAI business shall include the services historically provided by SVU or its Affiliates to NAI (or which NAI provided to itself), as well as the Services identified on Schedule 2, and (2) Albertson’s request for Services for New Stores as defined in Exhibit A shall not constitute an increase in volume, amount, level of frequency of Services. The Service Provider shall act under this Services Agreement solely as an independent contractor and not as an agent or employee of any other party or any of such party’s Affiliates. For the purposes of clarity, the parties acknowledge and agree that if and to the extent the Service Provider changes systems and processes used in the course of its business for its own account the Service Provider shall not permit such changes to degrade the Applicable Service Level. (c) The provision of Services by the Service Provider shall be subject to Article V hereof. (d) The parties have agreed to separate the Legal function of SVU and transition certain legal associates to Albertson’s over a period of up to ninety (90) days after the Effective Date (the “Legal Transition Period”). At the Effective Date, certain attorneys responsible for the provision of certain Services to Albertson’s (the “Transitioned Attorneys”) will transition to and become employed by Albertson’s at Albertson’s option. At some point during the Legal Transition Period, Albertson’s will have the option to make Qualifying Offers (as defined in the SPA) to some or all of an additional group of identified members of the SVU Legal function. During the Legal Transition Period, the parties will cooperate with respect to the transition of legal matters between them, and each of Albertson’s (but only with respect to the services provided by the Transitioned Attorneys and only to the extent historically provided to SVU) and SVU will provide legal services pursuant to Schedule 2 hereto, if needed, provided that (i) SVU may, in its discretion and at its expense, provide outside counsel (reasonably selected from a list of outside counsel used by Albertson’s prior to the Effective Date) in lieu of providing such legal services directly (it being understood that such outside counsel providing Services to Albertson’s hereunder will be acting on behalf of and as counsel for Albertson’s, and that (as between Albertson’s and SVU) Albertson’s will control the attorney-client relationship); (ii) neither party will in any case provide services with respect to commercial or other litigation that the other party has agreed to assume responsibility for, or to indemnify the other party or its Affiliates for, pursuant to the SPA (provided, however, that SVU will continue to cooperate in providing in-house litigation support (other than litigation management) to the extent historically provided by SVU to Albertson’s and Albertson’s acknowledges that during the Legal Transition Period in-house litigation support will continue to be provided to SVU by the remaining SVU legal function not hired by Albertson’s as of the Effective Date); (iii) SVU will not be responsible for providing legal services to Albertson’s in quantities that exceed the historical levels provided by SVU to Albertson’s; and (iv) each party will provide any reasonable and customary waiver of conflicts of interest or similar waiver reasonably requested by the other party or any substituted outside counsel in connection with the legal services provided pursuant to this Services Agreement, provided that no such waiver shall materially disadvantage the other party with respect to any matter handled by such counsel. Upon the elimination of legal services as Services under this Services Agreement, there will be a dollar-for-dollar reduction in the fees payable during the Initial Term equal to the salary and benefits of each employee that transfers employment to Albertson’s pursuant to a Qualifying Offer (as defined in the SPA) made in Albertson’s sole discretion, and, if necessary, the parties will execute a letter agreement confirming the reduction as soon as reasonably possible thereafter. (e) Similar to the legal transition referenced in Section 2.1(d), the parties have agreed to the elimination of additional Services originally contemplated to be provided by SVU pursuant to this Services Agreement by the employees of SVU and its Subsidiaries identified on Exhibit G. Upon the elimination of such Services from this Services Agreement, Albertson’s will receive credits against the fees payable pursuant to this Services Agreement as such credits are set forth on Exhibit G, and, if necessary, the parties will execute a letter agreement confirming the reduction as soon as reasonably practicable thereafter. (f) The parties agree to meet on or before September 20, 2013, to review the Services being provided and determine if there are any Services no longer required and which may be deleted from the Service schedules.

Appears in 1 contract

Sources: Administrative Services Agreement (Ipc Holdings LTD)

SERVICES TO BE PROVIDED. (a) ~~Notwithstanding anything~~ Unless otherwise set forth or contemplated by the Schedules or as agreed in writing by the parties, Seller shall, to the ~~contrary contained herein~~extent applicable, ~~other than as set forth on~~ provide the ~~applicable Schedule and subject to Sections 2.4 and 2.10 hereof, (i) the~~ Transition Services to ~~be provided by SVU as Service Provider hereunder shall be limited to (A)~~ Newco in substantially the ~~Services~~ same manner, having the same quality and in accordance with ~~respect to which it is listed~~ the same standards as the ~~Service Provider on Schedule 2 hereto, (B) as to the NAI business which Albertson’s is acquiring, the~~ Transition Services ~~which SVU and its Affiliates have historically provided to the NAI-acquired business, and (C) the Services~~ were performed by ~~SVU and its Affiliates~~ or for ~~Albertson’s as of immediately~~ the Operating Companies prior to the date of the SPA; provided that any change in Services after the date of the SPA but prior to the Effective Date shall be approved by the Steering Committee, (ii) the Services to be provided by Albertson’s as Service Provider hereunder shall be limited to the Services with respect to which it is listed as the Service Provider on Schedule 2 hereto, and (iii) in no event shall the Service Provider be required to provide any other services to the Receiving Party. The parties acknowledge and agree that they have sought to identify all Services to be provided by the Service Provider under this Services Agreement on the Schedules hereto, but that if the Schedules do not include the Services performed immediately prior to the date of the SPA by the Service Provider, the parties shall cooperate after the Closing ~~Date to amend and/or supplement the Schedules hereto from time to time to more accurately reflect such past practice~~Date; provided, however, ~~that (i) in~~ Seller shall have no ~~event will the Service Provider be obligated~~ obligation to provide ~~any Service~~ Transition Services which ~~(A) is listed on Schedule 2 as “deleted” or indicated in any way as no longer required or (B) is indicated~~ require Seller to ~~be provided only on a temporary basis and such time period has lapsed, subject~~ utilize additional resources beyond those needed to perform the Transition Services immediately prior to the ~~possible extension of such Service in accordance with Section 3.3~~Closing, ~~and (ii) Schedule 1 hereto sets forth~~ to the agreement of the parties with respect to procurement of goods for the Receiving Party and shall control that Service notwithstanding the past practices of the parties with respect to procurement of goodsextent applicable. (b) ~~The Service Provider~~ Nothing contained herein or ~~its designees~~ in the Schedules shall ~~perform the Services only in~~ constitute or be deemed to constitute a ~~manner~~partnership, ~~scope~~joint venture or agency relationship between Seller and Newco. Seller shall not have any right or authority, ~~nature~~ and ~~quality (such manner~~shall not attempt to enter into any contract, ~~scope~~commitment, ~~nature and quality~~or agreement or incur any debt or liability, ~~the “Applicable Service Level”) that is~~of any nature, in the ~~case~~ name of SVU as the Service Provider, the same in all material respects as the manner in which such Services were performed or to be performed by SVU and its Affiliates for Albertson’s as of immediately prior to the Date of the SPA, or, where a specific service level has been provided, as set forth in the Schedules hereto and, in the case of Albertson’s as Service Provider, in the manner described on Schedule 2Newco. For the avoidance of doubt, any change in service levels provided by the Service Provider to itself and its Affiliates after the Date of the SPA shall not affect the Applicable Service Level to be provided to the Receiving Party pursuant to this Services Agreement. Unless otherwise set forth herein or on the applicable Schedule, the Services provided hereunder shall be used by the Receiving Party for substantially the same purposes and in substantially the same manner (including as to volume, amount, level or frequency, as applicable) as such Services were used by the Receiving Party as of immediately prior to the Date of the SPA. Notwithstanding the foregoing, the parties acknowledge and agree that (1) Albertson’s acquisition of the NAI business shall not be deemed an increase of volume, amount, level or frequency, that SVU shall provide the Services contemplated herein to the NAI business, and that SVU’s provision of services to the NAI business shall include the services historically provided by SVU or its Affiliates to NAI (or which NAI provided to itself), as well as the Services identified on Schedule 2, and (2) Albertson’s request for Services for New Stores as defined in Exhibit A shall not constitute an increase in volume, amount, level of frequency of Services. The Service Provider Seller shall act under this ~~Services~~ Agreement solely as an independent contractor and not as an agent of Newco. Nothing contained herein shall constitute or ~~employee~~ be deemed to constitute an employment relationship between Newco and the employees of ~~any other party or any of such party’s Affiliates. For the purposes of clarity, the parties acknowledge and agree that if and to the extent the Service Provider changes systems and processes used~~ Seller engaged in the ~~course~~ providing of Transition Services. Seller shall be solely responsible for the payment of compensation and benefits to its ~~business for~~ employees and any payments or withholdings to governmental agencies relating to its ~~own account~~ employees, and shall make all staffing decisions and direct the ~~Service Provider shall not permit such changes to degrade~~ performance of the ~~Applicable Service Level~~Transition Services. (c) ~~The~~ Seller shall have the right to suspend the provision of relevant Transition Services by at any time it or any of its Affiliates has to shut down temporarily for maintenance purposes the operation of the facilities providing any Transition Service ~~Provider~~ whenever, in its reasonable discretion, such action is necessary; provided that Seller shall (i) give Newco as much advance notice as is reasonably practicable of any shutdown of the facilities providing any Transition Services and (ii) use reasonable efforts to schedule maintenance in consultation with Newco so as not unreasonably to interfere with Newco’s business. Where feasible, Seller’s notice of any shutdown shall be ~~subject~~ given in writing. Where written notice is not feasible, oral notice shall be given and promptly confirmed in writing. Seller shall be relieved of its obligations to ~~Article V hereof~~provide the Transition Services during the period that it or its Affiliates’ facilities are so shut down but shall use reasonable efforts to minimize each period of shutdown for such purpose and to schedule such shutdown so as not to inconvenience or disrupt the operations of Newco. (d) ~~The parties have agreed~~ Each of Seller and Newco appoint the following individuals, who shall serve as the coordinator for purposes of communicating with the other party regarding this Agreement and who shall be authorized to separate the Legal function of SVU and transition certain legal associates to Albertson’s over a period of up to ninety (90) days after the Effective Date (the “Legal Transition Period”). At the Effective Date, certain attorneys responsible for the provision of certain Services to Albertson’s (the “Transitioned Attorneys”) will transition to and become employed by Albertson’s at Albertson’s option. At some point during the Legal Transition Period, Albertson’s will have the option to make Qualifying Offers (as defined in the SPA) to some or all of an additional group of identified members of the SVU Legal function. During the Legal Transition Period, the parties will cooperate with respect to the transition of legal matters between them, and each of Albertson’s (but only with respect to the services provided by the Transitioned Attorneys and only to the extent historically provided to SVU) and SVU will provide legal services pursuant to Schedule 2 hereto, if needed, provided that (i) SVU may, in its discretion and at its expense, provide outside counsel (reasonably selected from a list of outside counsel used by Albertson’s prior to the Effective Date) in lieu of providing such legal services directly (it being understood that such outside counsel providing Services to Albertson’s hereunder will be acting act on behalf of his or her respective party as to matters pertaining to this Agreement: For Seller: For Newco: Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: Tomofumi Sekiyama Title: Director – Global Operations Title: Vice President, Business Operation Company: AT&T Japan Company: IIJ Global Solutions Phone: ▇▇-▇▇▇▇-▇▇▇▇ Phone: +▇▇-▇-▇▇▇▇-▇▇▇▇ E-mail address: ▇▇▇▇▇▇@▇▇▇.▇▇▇ E-mail address: ▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇.▇▇ The coordinator shall coordinate with contact person(s) set out in the Schedules, as necessary. Each party shall notify the other in writing as to the name, address and ~~as counsel~~ telephone number of any replacement for ~~Albertson’s~~such designated coordinator, and ~~that (as between Albertson’s and SVU~~such contact person(s) Albertson’s will control the attorney-client relationship); (ii) neither party will in any case provide services with respect to commercial or other litigation that the other party has agreed to assume responsibility for, or to indemnify the other party or its Affiliates for, pursuant to the SPA (provided, however, that SVU will continue to cooperate in providing in-house litigation support (other than litigation management) to the extent historically provided by SVU to Albertson’s and Albertson’s acknowledges that during the Legal Transition Period in-house litigation support will continue to be provided to SVU by the remaining SVU legal function not hired by Albertson’s as of the Effective Date); (iii) SVU will not be responsible for providing legal services to Albertson’s in quantities that exceed the historical levels provided by SVU to Albertson’s; and (iv) each party will provide any reasonable and customary waiver of conflicts of interest or similar waiver reasonably requested by the other party or any substituted outside counsel in connection with the legal services provided pursuant to this Services Agreement, provided that no such waiver shall materially disadvantage the other party with respect to any matter handled by such counsel. Upon the elimination of legal services as Services under this Services Agreement, there will be a dollar-for-dollar reduction set out in the fees payable during the Initial Term equal to the salary and benefits of each employee that transfers employment to Albertson’s pursuant to a Qualifying Offer (as defined in the SPA) made in Albertson’s sole discretion, and, if necessary, the parties will execute a letter agreement confirming the reduction as soon as reasonably possible thereafterSchedules. (e) Similar to the legal transition referenced in Section 2.1(d), the parties have agreed to the elimination of additional Services originally contemplated to be provided by SVU pursuant to this Services Agreement by the employees of SVU and its Subsidiaries identified on Exhibit G. Upon the elimination of such Services from this Services Agreement, Albertson’s will receive credits against the fees payable pursuant to this Services Agreement as such credits are set forth on Exhibit G, and, if necessary, the parties will execute a letter agreement confirming the reduction as soon as reasonably practicable thereafter. (f) The parties agree to meet on or before September 20, 2013, to review the Services being provided and determine if there are any Services no longer required and which may be deleted from the Service schedules.

Appears in 1 contract

Sources: Stock Purchase Agreement (Internet Initiative Japan Inc)

SERVICES TO BE PROVIDED. (a) ~~Notwithstanding anything to~~ During the ~~contrary contained herein, other than~~ term of this Agreement as set forth in Article III (the “Transition Period”) and on the ~~applicable Schedule~~ terms and subject to ~~Sections 2.4~~ the conditions of this Agreement and ~~2.10 hereof~~upon reasonable advance request of Unitil, NiSource will provide, or cause one or more of its Affiliates to provide, to Unitil (~~i) the Services to be provided by SVU as Service Provider hereunder shall be limited to (A) the Services~~ with respect to ~~which it is listed as~~ the ~~Service Provider on Schedule 2 hereto, (B~~Companies) as to the NAI business which Albertson’s is acquiring, the Services which SVU and its Affiliates have historically provided to the NAI-acquired business, and (C) the Services performed by SVU and its Affiliates for Albertson’s as of immediately prior to the date each of the ~~SPA; provided that any change~~ services (the “Services”) described in ~~Services after the date of the SPA but prior to~~ Annex A hereto from the Effective Date ~~shall be approved by~~ and for the ~~Steering Committee, (ii) the Services to be provided by Albertson’s as Service Provider hereunder shall be limited to the Services~~ periods of time described therein with respect to which it is listed as the Service Provider on Schedule 2 hereto, and (iii) in no event shall the Service Provider be required to provide any other services to the Receiving Party. The parties acknowledge and agree that they have sought to identify all Services to be provided by the Service Provider under this Services Agreement on the Schedules hereto, but that if the Schedules do not include the Services performed immediately prior to the date each of the ~~SPA~~ Services, unless notice is given by ~~the Service Provider~~Unitil of early termination or extension of time pursuant to Article 3 herein, ~~the parties shall cooperate after the Closing Date to amend and/or supplement the Schedules hereto from time to time to more accurately reflect such past practice;~~ provided, ~~however,~~ that ~~(i) in~~ under no ~~event~~ circumstances will ~~the Service Provider~~ NiSource or its Affiliates be obligated to provide any Service which (A) is listed on Schedule 2 as “deleted” or indicated in any way as no longer required or (B) is indicated to be provided only on a temporary basis and such time period has lapsed, subject services to the ~~possible extension of such Service in accordance with Section 3.3, and (ii) Schedule 1 hereto sets forth~~ Companies that NiSource or its Affiliates do not currently provide to the ~~agreement~~ Companies as of the ~~parties with respect~~ date of this Agreement. Services provided by NiSource under this Agreement shall not include any actions or obligations NiSource is otherwise required to ~~procurement of goods for~~ perform under the ~~Receiving Party and shall control that Service notwithstanding the past practices of the parties with respect to procurement of goods~~Purchase Agreement. (b) ~~The Service Provider~~ From time to time during the term of this Agreement, Unitil may request that NiSource or one of its ~~designees shall perform the Services only in~~ Affiliates provide services to Unitil that are not set forth on Annex A on a ~~manner~~temporary, ~~scope, nature and quality~~ urgent basis (~~such manner, scope, nature and quality,~~ the “~~Applicable Service Level~~Temporary Services”). Upon receipt of such request from Unitil, NiSource will respond in writing to Unitil, within two business days of Unitil’s request, notifying Unitil: (i) ~~that is, in the case~~ whether NiSource or one of ~~SVU as the Service Provider, the same in all material respects as the manner in which such Services were performed or to be performed by SVU and~~ its Affiliates ~~for Albertson~~is willing to provide the Temporary Services on such a temporary basis and (ii) the date upon which NiSource expects it can begin providing such Temporary Services. If NiSource so notifies Unitil that it will provide such Temporary Services, then upon receipt by NiSource of Unitil’s as written confirmation and acknowledgment of ~~immediately prior~~ NiSource’s notice, NiSource or one of its Affiliates will use commercially reasonable efforts to the Date of the SPA, or, where a specific service level has been provided, as set forth in the Schedules hereto and, in the case of Albertson’s as Service Provider, in the manner described on Schedule 2. For the avoidance of doubt, any change in service levels provided begin providing such requested Temporary Services by the ~~Service Provider to itself and its Affiliates after the Date~~ date specified in NiSource’s written notice. Within five (5) days of the SPA shall not affect the Applicable Service Level to be provided to the Receiving Party pursuant to this Services Agreement. Unless otherwise set forth herein or on the applicable Schedule, the Services provided hereunder shall be used by the Receiving Party for substantially the same purposes and in substantially the same manner (including as to volume, amount, level or frequency, as applicable) as such Services were used by the Receiving Party as of immediately prior to the Date of the SPA. Notwithstanding the foregoingNiSource’s notice, the parties ~~acknowledge and agree that (1) Albertson’s acquisition~~ will negotiate in good faith a supplement to Annex A setting forth the terms upon which the Temporary Services will be provided, including the specific definition of the ~~NAI business shall~~ scope of the services and the duration of the services. If the parties have not ~~be deemed an increase of volume~~agreed upon and executed such supplement to Annex A within such five (5) day period, ~~amount, level or frequency, that SVU shall~~ NiSource’s written agreement to provide the Temporary Services ~~contemplated herein~~ will cease to be effective and NiSource’s obligations to provide the NAI business, and that SVU’s provision of services to the NAI business shall include the services historically provided by SVU or its Affiliates to NAI (or which NAI provided to itself), as well as the Temporary Services identified on Schedule 2, and (2) Albertson’s request for Services for New Stores as defined in Exhibit A shall not constitute an increase in volume, amount, level of frequency of Services. The Service Provider shall act under this Services Agreement solely as an independent contractor and not as an agent or employee will terminate without liability of any other party or any of such party’s Affiliates. For the purposes of clarity, the parties acknowledge and agree that if and to the extent the Service Provider changes systems and processes used in the course of its business for its own account the Service Provider shall not permit such changes to degrade the Applicable Service Levelkind. (c) ~~The provision~~ Annex A provides a general description of Services by the Service Provider shall be subject to Article V hereof. (d) The parties have agreed to separate the Legal function of SVU and transition certain legal associates to Albertson’s over a period of up to ninety (90) days after the Effective Date (the “Legal Transition Period”). At the Effective Dateservices, certain attorneys responsible for the provision of certain Services to Albertson’s (the “Transitioned Attorneys”) will transition to and become employed by Albertson’s at Albertson’s option. At some point during the Legal Transition Period, Albertson’s will have the option to make Qualifying Offers (as defined in the SPA) to some or all of an additional group of identified members of the SVU Legal function. During the Legal Transition Period, the parties will cooperate along with respect to the transition of legal matters between them, and each of Albertson’s (but only with respect to the services provided by the Transitioned Attorneys and only to the extent historically provided to SVU) and SVU will provide legal services pursuant to Schedule 2 hereto, if needed, provided that (i) SVU may, in its discretion and at its expense, provide outside counsel (reasonably selected from a list of outside counsel used by Albertson’s prior to the Effective Date) in lieu of providing such legal services directly (it being understood that such outside counsel providing Services to Albertson’s hereunder will be acting on behalf of and as counsel for Albertson’sspecific services, and that (as between Albertson’s and SVU) Albertson’s will control the attorney-client relationship); (ii) neither party will in any case provide services with respect to commercial or other litigation that the other party has agreed to assume responsibility for, or to indemnify the other party or its Affiliates for, pursuant to the SPA (provided, however, that SVU will continue to cooperate in providing in-house litigation support (other than litigation management) to the extent historically provided by SVU to Albertson’s and Albertson’s acknowledges that during the Legal Transition Period in-house litigation support will continue to be provided ~~to SVU by~~ hereunder. The Parties recognize that Unitil may request certain follow-up or ancillary services which are within the ~~remaining SVU legal function not hired by Albertson’s as~~ scope of the ~~Effective Date); (iii) SVU will not be responsible for providing legal~~ specific services to Albertson’s in quantities that exceed the historical levels provided by SVU to Albertson’s; and (iv) each party will provide any reasonable and customary waiver of conflicts of interest or similar waiver reasonably requested by the other party or any substituted outside counsel in connection with the legal services provided pursuant to this Services Agreement, provided that no such waiver shall materially disadvantage the other party with respect to any matter handled by such counsel. Upon the elimination of legal services as Services under this Services Agreement, there will be a dollar-for-dollar reduction in the fees payable during the Initial Term equal to the salary and benefits of each employee that transfers employment to Albertson’s pursuant to a Qualifying Offer (as defined in the SPA) made in Albertson’s sole discretion, and, if necessary, the parties will execute a letter agreement confirming the reduction as soon as reasonably possible thereafter. (e) Similar to the legal transition referenced in Section 2.1(d), the parties have agreed to the elimination of additional Services originally contemplated to be provided by SVU pursuant to this Services Agreement by the employees of SVU and its Subsidiaries identified on Exhibit G. Upon the elimination of such Services from this Services Agreement, Albertson’s will receive credits against the fees payable pursuant to this Services Agreement as such credits are set forth ~~on Exhibit G~~in Annex A but not specifically listed therein. NiSource shall use good faith efforts to provide such follow-up or ancillary services, ~~and~~subject to all the terms and conditions of this Agreement. To the extent Unitil requests services beyond the scope of the specific services described in Annex A, ~~if necessary, the parties will execute a letter agreement confirming the reduction as soon as reasonably practicable thereafter~~it may request Temporary Services in accordance with Section 1.2(b) above. (f) The parties agree to meet on or before September 20, 2013, to review the Services being provided and determine if there are any Services no longer required and which may be deleted from the Service schedules.

Appears in 1 contract

Sources: Transition Services Agreement (Unitil Corp)

SERVICES TO BE PROVIDED. (a) ~~Notwithstanding anything to~~ Unless otherwise agreed by the ~~contrary contained herein, other than as set forth on the applicable Schedule and subject to Sections 2.4 and 2.10 hereof~~Parties in writing, (i1) ~~the Services to be provided by SVU as~~ each NeighborCare Service Provider ~~hereunder~~ shall be limited to (A) the Services with respect to which it is listed as the Service Provider on Schedule 2 hereto, (B) as to the NAI business which Albertson’s is acquiring, the Services which SVU and its Affiliates have historically provided to the NAI-acquired business, and (C) the Services performed by SVU and its Affiliates for Albertson’s as of immediately prior to the date of the SPA; provided that any change in Services after the date of the SPA but prior to the Effective Date shall be approved by the Steering Committee, (ii) the Services to be provided by Albertson’s as Service Provider hereunder shall be limited to the Services with respect to which it is listed as the Service Provider on Schedule 2 hereto, and (iii) in no event shall the Service Provider be required to provide any other services to the Receiving Party. The parties acknowledge and agree that they have sought to identify all Services to be provided by the Service Provider under this Services Agreement on the Schedules hereto, but that if the Schedules do not include the Services performed immediately prior to the date of the SPA by the Service Provider, the parties shall cooperate after the Closing Date to amend and/or supplement the Schedules hereto from time to time to more accurately reflect such past practice; provided, however, that (i) in no event will the Service Provider be obligated to provide any Service which (A) is listed on Schedule 2 as “deleted” or indicated in any way as no longer required or (B) is indicated to be provided only on a temporary basis and such time period has lapsed, subject to the possible extension of such Service in accordance with Section 3.3, and (ii) Schedule 1 hereto sets forth the agreement of the parties with respect to procurement of goods for the Receiving Party and shall control that Service notwithstanding the past practices of the parties with respect to procurement of goods. (b) The Service Provider or its designees shall perform the Services ~~only~~ in good faith and at a ~~manner, scope, nature and quality (such manner, scope, nature and quality, the “Applicable Service Level”)~~ standard of performance that ~~is, in the case of SVU as the Service Provider, the same~~ is substantially similar in all material respects as to the manner and timeliness in which such Services were performed ~~or to be performed by SVU~~ for ElderCare and its ~~Affiliates for Albertson’s as of immediately~~ subsidiaries prior to the ~~Date~~ Distribution Date, and each ElderCare Service Provider shall be required to perform the Services in good faith and at a standard of ~~the SPA, or, where a specific service level has been provided, as set forth~~ performance that is substantially similar in ~~the Schedules hereto and, in the case of Albertson’s as Service Provider, in~~ all material respects to the manner ~~described on Schedule 2. For the avoidance of doubt, any change~~ and timeliness in ~~service levels provided by the Service Provider to itself~~ which such Services were performed for NeighborCare and its ~~Affiliates after the Date of the SPA shall not affect the Applicable Service Level to be provided~~ subsidiaries prior to the ~~Receiving Party pursuant to this Services Agreement. Unless otherwise set forth herein~~ Distribution Date, and (2) each NeighborCare Service Recipient or ~~on the applicable Schedule~~ElderCare Service Recipient (each, when relevant, a "Service Recipient") shall use the Services ~~provided hereunder shall be used by the Receiving Party~~ solely for substantially the same purposes and in substantially the same manner (including as to volume, amount, ~~level~~ level, or frequency, as applicable) as ~~such Services were~~ the services had been used by the ~~Receiving Party as~~ the business of ~~immediately~~ the applicable Service Recipient prior to such date. In no event shall the ~~Date~~ scope of ~~the SPA. Notwithstanding the foregoing, the parties acknowledge and agree~~ a Service required to be performed hereunder exceed that (1) Albertson’s acquisition of the NAI business shall not be deemed an increase of volume, amount, level or frequency, that SVU shall provide the Services contemplated herein to the NAI business, and that SVU’s provision of services to the NAI business shall include the services historically provided by SVU or its Affiliates to NAI (or which NAI provided to itself), as well as the Services identified described on Schedule 21 and Schedule 2 hereof, ~~and (2) Albertson’s request for Services for New Stores as defined~~ unless otherwise agreed by the Parties in ~~Exhibit A shall not constitute an increase in volume, amount, level of frequency of Services~~writing. ~~The~~ Each NeighborCare Service Provider and each ElderCare Service Provider (as applicable, a "Service Provider") shall act under this Services Agreement solely as an independent contractor and not as an agent ~~or employee~~ of any ElderCare Service Recipient or NeighborCare Service Recipient, as applicable. (b) Each Party shall use its good-faith efforts, and agrees to provide such assistance as may be reasonably requested by any Service Recipient, to assist the other ~~party~~ with the development of transition plans to assure a smooth and orderly transition, and shall use its reasonable good-faith efforts to reduce or ~~any~~ eliminate its and its Service Recipients' dependency on the Services no later than the end of the term of such party’s Affiliates. For the purposes of clarity, the parties acknowledge and agree that if and to the extent the Service Provider changes systems and processes used in the course of its business for its own account the Service Provider shall not permit such changes to degrade the Applicable Service LevelService. (c) ~~The provision~~ If it is necessary for any Service Provider to increase staffing or acquire equipment or make any investments or capital expenditures to accommodate an increase in the use of ~~Services by~~ any Service beyond the level of use of such Service prior to the Distribution Date as a result of an increase in volume of the business or a change in the manner in which the business is being conducted, such Service Provider shall inform the Service Recipient in writing of such increase in staffing level, equipment acquisitions, investments or capital expenditures before any such cost or expense is incurred. Upon mutual agreement of the Parties acting in good faith as to the necessity of any such increase, the Service Recipient shall advance to the relevant Service Providers an amount equal to the actual costs and expenses to be ~~subject~~ incurred in connection therewith. If such mutual agreement is not reached, the Service Provider's obligation to ~~Article V hereof~~provide or cause to be provided such Service shall be limited to the level of use of such Service then in effect. (d) ~~The parties have agreed~~ If, by virtue of any termination or reduction of any Services as contemplated by Article IV hereof, it becomes desirable for any Service Provider to ~~separate the Legal function of SVU and transition certain legal associates to Albertson’s over a period of up to ninety (90~~terminate any employee(s) ~~days after the Effective Date (the “Legal Transition Period”). At the Effective Date, certain attorneys responsible for~~ who participated in the provision of ~~certain Services to Albertson’s (~~such Services, the ~~“Transitioned Attorneys”) will transition to and become employed by Albertson’s at Albertson’s option. At some point during~~ Parties shall negotiate in good faith such that the ~~Legal Transition Period, Albertson’s will have the option to make Qualifying Offers (as defined in the SPA) to some or all of~~ applicable Service Recipient shall pay an ~~additional group of identified members~~ appropriate portion of the ~~SVU Legal function. During the Legal Transition Period, the parties will cooperate~~ costs associated with respect to the transition of legal matters between them, and each of Albertson’s (but only with respect to the services provided by the Transitioned Attorneys and only to the extent historically provided to SVU) and SVU will provide legal services pursuant to Schedule 2 hereto, if needed, provided that (i) SVU may, in its discretion and at its expense, provide outside counsel (reasonably selected from a list of outside counsel used by Albertson’s prior to the Effective Date) in lieu of providing such legal services directly (it being understood that such outside counsel providing Services to Albertson’s hereunder will be acting on behalf of and as counsel for Albertson’s, and that (as between Albertson’s and SVU) Albertson’s will control the attorney-client relationship); (ii) neither party will in any case provide services with respect to commercial or other litigation that the other party has agreed to assume responsibility for, or to indemnify the other party or its Affiliates for, pursuant to the SPA (provided, however, that SVU will continue to cooperate in providing in-house litigation support (other than litigation management) to the extent historically provided by SVU to Albertson’s and Albertson’s acknowledges that during the Legal Transition Period in-house litigation support will continue to be provided to SVU by the remaining SVU legal function not hired by Albertson’s as of the Effective Date); (iii) SVU will not be responsible for providing legal services to Albertson’s in quantities that exceed the historical levels provided by SVU to Albertson’s; and (iv) each party will provide any reasonable and customary waiver of conflicts of interest or similar waiver reasonably requested by the other party or any substituted outside counsel in connection with the legal services provided pursuant to this Services Agreement, provided that no such waiver shall materially disadvantage the other party with respect to any matter handled by such counsel. Upon the elimination of legal services as Services under this Services Agreement, there will be a dollar-for-dollar reduction in the fees payable during the Initial Term equal to the salary and benefits of each employee that transfers employment to Albertson’s pursuant to a Qualifying Offer (as defined in the SPA) made in Albertson’s sole discretion, and, if necessary, the parties will execute a letter agreement confirming the reduction as soon as reasonably possible thereaftertermination. (e) ~~Similar~~ If it is necessary for any Service Provider to increase staffing or acquire equipment or make any investments or capital expenditures or otherwise absorb or incur incremental expenses in order to provide any Service as a result of changes arising from or as a result of the Spin-Off and related transactions, including the internal restructuring and changes in or transfers of personnel, upon mutual agreement of the Parties acting in good faith as to the ~~legal transition referenced~~ necessity of any such increase, NeighborCare or ElderCare, as the case may be, shall reimburse the Service Provider, within 5 business days upon receipt of a written invoice, an amount equal to the actual costs and expenses incurred by the Service Provider in ~~Section 2.1(d)~~connection therewith. If such mutual agreement is not reached, the ~~parties have agreed~~ Service Provider's obligation to ~~the elimination of additional Services originally contemplated~~ provide or cause to be provided ~~by SVU pursuant~~ such Service shall be limited to ~~this Services Agreement by~~ the ~~employees~~ level of ~~SVU and its Subsidiaries identified on Exhibit G. Upon the elimination~~ use of such ~~Services from this Services Agreement~~Service prior to the Distribution Date; provided, ~~Albertson’s will receive credits against the fees payable pursuant to this Services Agreement as~~ that if such ~~credits are set forth on Exhibit G, and, if necessary~~level cannot be provided by such Service Provider without any increase in investment or expenditure, the ~~parties will execute~~ applicable Service Provider shall provide the highest level of Service which can be provided on a ~~letter agreement confirming the reduction as soon as reasonably practicable thereafter~~commercially reasonable basis without any increase in investment or expenditure. (f) The ~~parties agree~~ Parties will use good-faith efforts to ~~meet on~~ reasonably cooperate with each other in all matters relating to the provision and receipt of Services. Such cooperation shall include seeking or ~~before September 20~~applying for all consents, ~~2013~~licenses or approvals necessary to permit each party to perform its obligations hereunder. The Parties will, for a period of six years after the Distribution Date, maintain documentation supporting the information contained in the Schedules and cooperate with each other in making such information available as needed, subject to ~~review~~ appropriate confidentiality requirements, in the ~~Services being provided and determine if there are~~ event of any ~~Services no longer required and which may be deleted from the Service schedules~~tax audit or litigation.

Appears in 1 contract

Sources: Transition Services Agreement (Genesis Healthcare Corp)

SERVICES TO BE PROVIDED. ~~(a) Notwithstanding anything~~ The categories of Services shall include the services as described on Schedule A and such other services as are reasonably requested by Buyer that are required or advisable to maintain the ~~contrary contained herein~~continuity of the Acquired Business, ~~other than~~ its customers, its products or material supply arrangements and operations. The Parties agree that the details of the specific Services to be provided hereunder, and certain terms related thereto shall be as set forth on Schedules A-l to attached hereto and shall cooperate with each other to ensure appropriate coordination of such Services. Unless otherwise agreed by the applicable Schedule and subject to Sections 2.4 and 2.10 hereof, (i) the Services to be provided by SVU as Service Provider hereunder shall be limited to (A) the Services with respect to which it is listed as the Service Provider on Schedule 2 hereto, (B) as to the NAI business which Albertson’s is acquiringParties, the Services ~~which SVU and its Affiliates have historically provided to the NAI-acquired business, and (C) the Services~~ shall be performed by ~~SVU~~ Seller for Buyer at a quality level and ~~its Affiliates for Albertson’s as of immediately prior to~~ in a manner that are substantially the date of the SPA; provided that any change in Services after the date of the SPA but prior to the Effective Date shall be approved by the Steering Committee, (ii) the Services to be provided by Albertson’s as Service Provider hereunder shall be limited to the Services with respect to which it is listed same as the ~~Service Provider on Schedule 2 hereto,~~ quality level and (iii) in no event shall the Service Provider be required to provide any other services to the Receiving Party. The parties acknowledge and agree that they have sought to identify all Services to be provided by the Service Provider under this Services Agreement on the Schedules hereto, but that if the Schedules do not include the Services performed immediately prior to the date of the SPA by the Service Provider, the parties shall cooperate after the Closing Date to amend and/or supplement the Schedules hereto from time to time to more accurately reflect such past practice; provided, however, that (i) in no event will the Service Provider be obligated to provide any Service which (A) is listed on Schedule 2 as “deleted” or indicated in any way as no longer required or (B) is indicated to be provided only on a temporary basis and such time period has lapsed, subject to the possible extension of such Service in accordance with Section 3.3, and (ii) Schedule 1 hereto sets forth the agreement of the parties with respect to procurement of goods for the Receiving Party and shall control that Service notwithstanding the past practices of the parties with respect to procurement of goods. (b) The Service Provider or its designees shall perform the Services only in a manner, scope, nature and quality (such manner, scope, nature and quality, the “Applicable Service Level”) that is, in the case of SVU as the Service Provider, the same in all material respects as the manner in which such Services were ~~performed or to be~~ generally performed by ~~SVU and its Affiliates~~ Seller for ~~Albertson’s as of immediately~~ the Acquired Business prior to the ~~Date~~ date of the SPA, or, where a specific service level has been provided, as set forth in the Schedules hereto and, in the case of Albertson’s as Service Provider, in the manner described on Schedule 2. For the avoidance of doubt, any change in service levels provided by the Service Provider to itself and its Affiliates after the Date of the SPA shall not affect the Applicable Service Level to be provided to the Receiving Party pursuant to this Services Agreement~~. Unless otherwise set forth herein or on the applicable Schedule~~, ~~the~~ and Buyer shall use such Services ~~provided hereunder shall be used by the Receiving Party~~ for substantially the same purposes and in substantially the same manner ~~(including~~ as ~~to volume, amount, level or frequency, as applicable) as~~ the Acquired Business had used such Services ~~were used by the Receiving Party as of immediately~~ prior to the ~~Date of the SPA. Notwithstanding the foregoing~~date hereof; provided, ~~the parties acknowledge and agree that (1) Albertson’s acquisition of the NAI business shall not be deemed an increase of volume, amount, level or frequency~~however, that ~~SVU~~ Seller shall ~~provide~~ be entitled to obtain such Services from a third party or to discontinue such Services if it does so for its other businesses during the term of this Services Agreement. No modifications to the Services ~~contemplated herein~~ by Seller however, will result in a material change in the level and type of Services provided. Seller will provide Buyer with sixty (60) days' prior written notice of its intention to do so. Seller shall use reasonable efforts to obtain such licenses or other authority as shall be necessary for Seller to grant Buyer access to or use of any restricted software used in the ~~NAI business,~~ performance of Services by Seller hereunder. Buyer shall bear all of Seller's costs and ~~that SVU’s provision of services to the NAI business shall include the services historically provided by SVU~~ expenses associated with obtaining such licenses or its Affiliates to NAI (or which NAI provided to itself), as well as the Services identified on Schedule 2, and (2) Albertson’s request for Services for New Stores as defined in Exhibit A shall not constitute an increase in volume, amount, level of frequency of Servicesother authority. ~~The Service Provider~~ Seller shall act under this Services Agreement solely as an independent contractor and not as an agent ~~or employee~~ of ~~any other party or any of such party’s Affiliates~~Buyer. For the purposes of clarity, the parties acknowledge and agree that if and to the extent the Service Provider changes systems and processes used in the course of its business for its own account the Service Provider shall not permit such changes to degrade the Applicable Service Level. (c) The provision of Services by the Service Provider Buyer shall be ~~subject~~ entitled to ~~Article V hereof. (d) The parties have agreed~~ utilize those Services, and the levels thereof that it needs. There is no obligation of Buyer to separate the Legal function of SVU and transition certain legal associates to Albertson’s over a period of up to ninety (90) days after the Effective Date (the “Legal Transition Period”). At the Effective Date, certain attorneys responsible for the provision of certain Services to Albertson’s (the “Transitioned Attorneys”) will transition to and become employed by Albertson’s at Albertson’s option. At some point during the Legal Transition Period, Albertson’s will have the option to make Qualifying Offers (as defined in the SPA) to some utilize any or all of ~~an additional group of identified members of~~ the SVU Legal function. During the Legal Transition Period, the parties will cooperate with respect to the transition of legal matters between them, and each of Albertson’s (but only with respect to the services Services provided by ~~the Transitioned Attorneys and only to the extent historically provided to SVU) and SVU will provide legal services pursuant to Schedule 2 hereto, if needed, provided that (i) SVU may,~~ Seller in its discretion and at its expense, provide outside counsel (reasonably selected from a list of outside counsel used by Albertson’s prior to the Effective Date) in lieu of providing such legal services directly (it being understood that such outside counsel providing accordance with this Services ~~to Albertson’s hereunder will be acting on behalf of and as counsel for Albertson’s, and that (as between Albertson’s and SVU) Albertson’s will control the attorney-client relationship)~~Agreement; (ii) neither party will in any case provide services with respect to commercial or other litigation that the other party has agreed to assume responsibility for, or to indemnify the other party or its Affiliates for, pursuant to the SPA (provided, however, that ~~SVU will continue~~ in the event Buyer elects not to ~~cooperate in providing in-house litigation support (other than litigation management)~~ use a particular Service, it shall notify Seller prior to the ~~extent historically provided by SVU to Albertson’s~~ Closing Date and Albertson’s acknowledges that during the Legal Transition Period in-house litigation support will continue to be provided to SVU by the remaining SVU legal function not hired by Albertson’s as of the Effective Date); (iii) SVU will not be responsible for providing legal services to Albertson’s in quantities that exceed the historical levels provided by SVU to Albertson’s; and (iv) each party will provide any reasonable and customary waiver of conflicts of interest or similar waiver reasonably requested by the other party or any substituted outside counsel in connection with the legal services provided pursuant to this Services Agreement, provided that Seller shall have no ~~such waiver shall materially disadvantage the other party~~ further obligations hereunder with respect to ~~any matter handled by~~ such counsel. Upon the elimination of legal services as Services under this Services Agreement, there will be a dollar-for-dollar reduction in the fees payable during the Initial Term equal to the salary and benefits of each employee that transfers employment to Albertson’s pursuant to a Qualifying Offer (as defined in the SPA) made in Albertson’s sole discretion, and, if necessary, the parties will execute a letter agreement confirming the reduction as soon as reasonably possible thereafterService. (e) Similar to the legal transition referenced in Section 2.1(d), the parties have agreed to the elimination of additional Services originally contemplated to be provided by SVU pursuant to this Services Agreement by the employees of SVU and its Subsidiaries identified on Exhibit G. Upon the elimination of such Services from this Services Agreement, Albertson’s will receive credits against the fees payable pursuant to this Services Agreement as such credits are set forth on Exhibit G, and, if necessary, the parties will execute a letter agreement confirming the reduction as soon as reasonably practicable thereafter. (f) The parties agree to meet on or before September 20, 2013, to review the Services being provided and determine if there are any Services no longer required and which may be deleted from the Service schedules.

Appears in 1 contract

Sources: Asset Purchase Agreement (Oxford Automotive Inc)

SERVICES TO BE PROVIDED. (a) Notwithstanding anything to the contrary contained herein, other than as set forth on the applicable Schedule and subject to Sections 2.4 and 2.10 hereof, (i) the Services to be provided by SVU as Service Provider hereunder shall be limited to (A) the Services with respect to which it is listed as the Service Provider on Schedule 2 hereto, (B) as to the NAI business which Albertson’s is acquiring, the Services which SVU and its Affiliates have historically provided to the NAI-acquired business, and (C) the Services performed by SVU and its Affiliates for Albertson’s as of immediately prior to the date of the SPA; provided that any change in Services after the date of the SPA but prior to the Effective Date shall be approved Unless otherwise agreed by the ~~Steering Committee~~Parties, ~~(ii) the Services to be provided by Albertson’s as Service Provider hereunder~~ Buyer and Seller shall ~~be limited to the Services with respect to which it is listed as the Service Provider on Schedule 2 hereto, and (iii) in no event shall the Service Provider~~ be required to ~~provide any~~ perform, or to cause the other ~~services~~ applicable Service Providers to ~~the Receiving Party. The parties acknowledge and agree that they have sought to identify all Services to be provided by the Service Provider under this Services Agreement on the Schedules hereto~~perform, but that if the Schedules do not include the Services performed immediately prior to the date of the SPA by the Service Provider, the parties shall cooperate after the Closing Date to amend and/or supplement the Schedules hereto from time to time to more accurately reflect such past practice; provided, however, that (i) in no event will the Service Provider be obligated to provide any Service which (A) is listed on Schedule 2 as “deleted” or indicated in any way as no longer required or (B) is indicated to be provided only on a temporary basis and such time period has lapsed, subject to the possible extension of such Service in accordance with Section 3.3, and (ii) Schedule 1 hereto sets forth the agreement of the parties with respect to procurement of goods for the Receiving Party and shall control that Service notwithstanding the past practices of the parties with respect to procurement of goods. (b) The Service Provider or its designees shall perform the Services only in a ~~manner, scope, nature and quality (such manner, scope, nature and quality, the “Applicable Service Level”)~~ manner that ~~is, in the case of SVU as the Service Provider, the same~~ is substantially similar in all material respects as to the manner in which such Services were performed for the Company or ~~to be performed by SVU and its Affiliates for Albertson’s~~ the Seller, as ~~of immediately~~ the case may be, prior to the ~~Date of the SPA~~Closing Date, or, where a specific service level has been provided, as set forth in the Schedules hereto and, in the case of Albertson’s as Service Provider, in the manner described on Schedule 2. For the avoidance of doubt, any change in service levels provided by the Service Provider to itself and its Affiliates after the Date of the SPA shall not affect the Applicable Service Level to be provided to the Receiving Party pursuant to this Services Agreement. Unless otherwise set forth herein or on the applicable Schedule, the Services ~~provided hereunder~~ shall be used ~~by the Receiving Party~~ for substantially the same purposes and in substantially the same manner (including as to volume, amount, level or frequency, as applicable) as such Services were used by the Receiving Party as of immediately prior to the Date of the SPA. Notwithstanding the foregoing, the parties acknowledge and agree that (1) Albertson’s acquisition of the NAI business shall not be deemed an increase of volume, amount, level or frequency, that SVU shall provide the Services contemplated herein to the NAI business, and that SVU’s provision of services to the NAI business shall include the services historically provided by SVU or its Affiliates to NAI (or which NAI provided to itself), as well as the Services ~~identified~~ had been used prior to such date; PROVIDED, HOWEVER, that in no event shall the scope of the Services required to be performed hereunder exceed that described on Schedule 2, 1 unless otherwise agreed in writing. Each of Seller and ~~(2) Albertson’s request for Services for New Stores as defined in Exhibit A shall not constitute an increase in volume, amount, level of frequency of Services. The~~ the Seller Service ~~Provider~~ Providers shall act under this Services Agreement solely as an independent contractor and not as an agent of the Buyer or ~~employee~~ the Company. Each of Buyer, Company and the Buyer Service Providers shall act under this Services Agreement solely as an independent contractor and not as an agent of the Seller. (b) If it is necessary for any Seller Service Provider to increase staffing or acquire equipment or make any investments or capital expenditures to accommodate an increase in the use of any ~~other party or any~~ Seller Service beyond the level of use of such ~~party’s Affiliates. For~~ Seller Service by the ~~purposes of clarity,~~ Buyer or the ~~parties acknowledge and agree that if and~~ Company prior to the ~~extent~~ Closing Date, as a result of an increase in volume of the ~~Service Provider changes systems and processes used~~ business of the Company or a change in the ~~course~~ manner in which the business of ~~its business for its own account~~ the Company is being conducted, Seller shall inform Buyer in writing of such increase in staffing level, equipment acquisitions, investments or capital expenditures before any such cost or expense is incurred. Upon mutual agreement of the Parties as to the necessity of any such increase, Buyer (unless Buyer and Seller shall otherwise agree in writing) shall advance to the relevant Seller Service ~~Provider~~ Providers an amount equal to the actual costs and expenses to be incurred in connection therewith. If such mutual agreement is not reached, Seller's obligation to provide or cause to be provided such Seller Service shall ~~not permit~~ be limited to the level of use of such ~~changes~~ Seller Service by the Company prior to ~~degrade~~ the ~~Applicable Service Level~~Closing Date. (c) The ~~provision of Services by~~ Service Providers shall have the ~~Service Provider shall be subject~~ right to shut down temporarily for any reason specified in Article V (Force Majeure) hereof. (d) ~~The parties have agreed~~ Buyer and Seller agrees to ~~separate~~ use their reasonable good faith efforts to reduce or eliminate their dependency on the Legal function of SVU and transition certain legal associates to Albertson’s over a period of up to ninety (90) days after the Effective Date (the “Legal Transition Period”). At the Effective Date, certain attorneys responsible for the provision of certain Services to Albertson’s (the “Transitioned Attorneys”) will transition to and become employed by Albertson’s at Albertson’s option. At some point during the Legal Transition Period, Albertson’s will have the option to make Qualifying Offers (as defined in the SPA) to some or all of an additional group of identified members of the SVU Legal function. During the Legal Transition Period, the parties will cooperate with respect to the transition of legal matters between them, and each of Albertson’s (but only with respect to the services provided by the Transitioned Attorneys and only to the extent historically provided to SVU) and SVU will provide legal services pursuant to Schedule 2 hereto, if needed, provided that (i) SVU may, in its discretion and at its expense, provide outside counsel (reasonably selected from a list of outside counsel used by Albertson’s prior to the Effective Date) in lieu of providing such legal services directly (it being understood that such outside counsel providing Services to Albertson’s hereunder will be acting on behalf of and as counsel for Albertson’s, and that (as between Albertson’s and SVU) Albertson’s will control the attorney-client relationship); (ii) neither party will in any case provide services with respect to commercial or other litigation that the other party has agreed to assume responsibility for, or to indemnify the other party or its Affiliates for, pursuant to the SPA (provided, however, that SVU will continue to cooperate in providing in-house litigation support (other than litigation management) to the extent historically provided by SVU to Albertson’s and Albertson’s acknowledges that during the Legal Transition Period in-house litigation support will continue to be provided to SVU by the remaining SVU legal function not hired by Albertson’s as of the Effective Date); (iii) SVU will not be responsible for providing legal services to Albertson’s in quantities that exceed the historical levels provided by SVU to Albertson’s; and (iv) each party will provide any reasonable and customary waiver of conflicts of interest or similar waiver reasonably requested by the other party or any substituted outside counsel in connection with the legal services provided pursuant to this Services Agreement, provided that no such waiver shall materially disadvantage the other party with respect to any matter handled by such counsel. Upon the elimination of legal services as Services under this Services Agreement, there will be a dollar-for-dollar reduction in the fees payable during the Initial Term equal to the salary and benefits of each employee that transfers employment to Albertson’s pursuant to a Qualifying Offer (as defined in the SPA) made in Albertson’s sole discretion, and, if necessary, the parties will execute a letter agreement confirming the reduction as soon as is reasonably ~~possible thereafter~~practicable. (e) ~~Similar~~ If it is necessary for Seller or any other Seller Service Provider to increase staffing or acquire equipment or make any investments or capital expenditures or otherwise absorb or incur incremental expenses in order to provide any Seller Service as a result of the ~~legal~~ initial conversion or transition ~~referenced~~ of such Seller Service (including, for example, costs incurred by Seller or a Seller Service Provider in ~~Section 2.1(d~~order to segregate data or systems for the Company from other data or systems of Seller or the Seller Service Provider), then Buyer agrees to reimburse the ~~parties have agreed~~ Seller Service Provider in cash, promptly upon receipt of a written invoice, an amount equal to one half of the ~~elimination of additional Services originally contemplated to be provided by SVU pursuant to this Services Agreement~~ actual costs and expenses incurred by the employees of SVU and its Subsidiaries identified on Exhibit G. Upon the elimination of such Services from this Services Agreement, Albertson’s will receive credits against the fees payable pursuant to this Services Agreement as such credits are set forth on Exhibit G, and, if necessary, the parties will execute a letter agreement confirming the reduction as soon as reasonably practicable thereafterSeller Service Provider in connection therewith. (f) The parties ~~agree~~ will use good faith efforts to ~~meet on~~ reasonably cooperate with each other in all matters relating to the provision and receipt of Services. Such cooperation shall include obtaining all consents, licenses or ~~before September 20~~approvals necessary to permit each party to perform its obligations hereunder; PROVIDED that neither Buyer nor Seller shall be required to pay any amounts to any third parties or to grant any accommodation, ~~2013~~financial or otherwise, to ~~review~~ secure the ~~Services being provided~~ same. The parties will, for a period of five (5) years after the Closing Date, maintain documentation supporting the information contained in the Exhibits and ~~determine if there are~~ Schedules and cooperate with each other in making such information available as needed, subject to appropriate confidentiality requirements, in the event of any ~~Services no longer required and which may be deleted from the Service schedules~~tax audit or litigation.

Appears in 1 contract

Sources: Transition Services Agreement (Vertex Aerospace Inc)

SERVICES TO BE PROVIDED. (a) Notwithstanding anything to the contrary contained herein, other than as set forth on the applicable Schedule and subject to Sections 2.4 and 2.10 hereof, (i) the Services to be provided by SVU as Service Provider hereunder shall be limited to (A) the Services with respect to which it is listed as the Service Provider on Schedule 2 hereto, (B) as to the NAI business which Albertson’s is acquiring, the Services which SVU and its Affiliates have historically provided to the NAI-acquired business, and (C) the Services performed by SVU and its Affiliates for Albertson’s as of immediately prior to the date of the SPA; provided that any change in Services after the date of the SPA but prior to the Effective Date shall be approved by the Steering Committee, (ii) the Services to be provided by Albertson’s as Service Provider hereunder shall be limited to the Services with respect to which it is listed as the Service Provider on Schedule 2 hereto, and (iii) in no event shall the Service Provider be required to provide any other services to the Receiving Party. The parties acknowledge and agree that they have sought to identify all Services to be provided by the Service Provider under this Services Agreement on the Schedules hereto, but that if the Schedules do not include the Services performed immediately prior to the date of the SPA by the Service Provider, the parties shall cooperate after the Closing Date to amend and/or supplement the Schedules hereto from time to time to more accurately reflect such past practice; provided, however, that (i) in no event will the Service Provider be obligated to provide any Service which (A) is listed on Schedule 2 as “deleted” or indicated in any way as no longer required or (B) is indicated to be provided only on a temporary basis and such time period has lapsed, subject to the possible extension of such Service in accordance with Section 3.3, and (ii) Schedule 1 hereto sets forth the agreement of the parties with respect to procurement of goods for the Receiving Party and shall control that Service notwithstanding the past practices of the parties with respect to procurement of goods. (b) The Service Provider or its designees shall perform the Services only in a manner, scope, nature and quality (such manner, scope, nature and quality, the “Applicable Service Level”) that is, in the case of SVU as the Service Provider, the same in all material respects as the manner in which such Services were performed or to be performed by SVU and its Affiliates for Albertson’s as of immediately prior to the Date of the SPA, or, where a specific service level has been provided, as set forth in the Schedules hereto and, in the case of Albertson’s as Service Provider, in the manner described on Schedule 2. For the avoidance of doubt, any change in service levels provided by the Service Provider to itself and its Affiliates after the Date of the SPA shall not affect the Applicable Service Level to be provided to the Receiving Party pursuant to this Services Agreement. Unless otherwise set forth herein or on the applicable Schedule, the Services provided hereunder shall be used by the Receiving Party for substantially the same purposes and in substantially the same manner (including as to volume, amount, level or frequency, as applicable) as such Services were used by the Receiving Party as of immediately prior to the Date of the SPA. Notwithstanding the foregoing, the parties acknowledge and agree that (1) Albertson’s acquisition of the NAI business shall not be deemed an increase of volume, amount, level or frequency, that SVU shall provide the Services contemplated herein to the NAI business, and that SVU’s provision of services to the NAI business shall include the services historically provided by SVU or its Affiliates to NAI (or which NAI provided to itself), as well as the Services identified on Schedule 2, and (2) Albertson’s request for Services for New Stores as defined in Exhibit A shall not constitute an increase in volume, amount, level of frequency of Services. The Service Provider shall act under this Services Agreement solely as an independent contractor and not as an agent or employee of any other party or any of such party’s Affiliates. For the purposes of clarity, the parties acknowledge and agree that if and to the extent the Service Provider changes systems and processes used in the course of its business for its own account the Service Provider shall not permit such changes to degrade the Applicable Service Level. (c) The provision of Services by the Service Provider shall be subject to Article V hereof. (d) ~~The parties have agreed~~ SVU will provide legal services pursuant to ~~separate the Legal function of SVU and transition certain legal associates to Albertson’s over~~ Schedule 2 hereto, if needed, for a period of up to ninety (90) days after the Effective ~~Date (the “Legal Transition Period”). At the Effective~~ Date, certain attorneys responsible for the provision of certain Services to Albertson’s (the “Transitioned Attorneys”) will transition to and become employed by Albertson’s at Albertson’s option. At some point during the Legal Transition Period, Albertson’s will have the option to make Qualifying Offers (as defined in the SPA) to some or all of an additional group of identified members of the SVU Legal function. During the Legal Transition Period, the parties will cooperate with respect to the transition of legal matters between them, and each of Albertson’s (but only with respect to the services provided by the Transitioned Attorneys and only to the extent historically provided to SVU) and SVU will provide legal services pursuant to Schedule 2 hereto, if needed, provided that (i) SVU may, in its discretion and at its expense, provide outside counsel (reasonably selected from a list of outside counsel used by Albertson’s prior to the Effective Date) in lieu of providing such legal services directly (it being understood that such outside counsel providing Services to Albertson’s hereunder will be acting on behalf of and as counsel for Albertson’s, and that (as between Albertson’s and SVU) Albertson’s will control the attorney-client relationship); (ii) ~~neither party~~ SVU will not in any case provide services with respect to commercial or other litigation that ~~the other party~~ Albertson’s has agreed to assume responsibility for, or to indemnify ~~the other party~~ SVU or its Affiliates for, pursuant to the SPA (provided, however, that SVU will continue to cooperate in providing in-house litigation support (other than litigation management) to the extent historically provided by SVU to Albertson’s and Albertson’s acknowledges that during the Legal Transition Period in-house litigation support will continue to be provided to SVU by the remaining SVU legal function not hired by Albertson’s as of the Effective Date’s); (iii) SVU will not be responsible for providing legal services to Albertson’s in quantities that exceed the historical levels provided by SVU to Albertson’s; and (iv) ~~each party~~ Albertson’s will provide any reasonable and customary waiver of conflicts of interest or similar waiver reasonably requested by ~~the other party~~ SVU or any substituted outside counsel in connection with the legal services provided pursuant to this Services Agreement, provided that no such waiver shall materially disadvantage ~~the other party~~ Albertson’s as compared to SVU with respect to any matter handled by such counsel. Upon the elimination of legal services as Services under this Services Agreement, there will be a dollar-for-dollar reduction in the fees payable during the Initial Term equal to the salary and benefits of each employee that transfers employment to Albertson’s pursuant to a Qualifying Offer (as defined in the SPA) made in Albertson’s sole discretion, ~~and, if necessary,~~ and the parties will execute a letter agreement confirming the reduction as soon as reasonably possible thereafter. (e) Similar to the legal transition referenced in Section 2.1(d), the parties have agreed to the elimination of additional Services originally contemplated to be provided by SVU pursuant to this Services Agreement by the employees of SVU and its Subsidiaries identified on Exhibit G. Upon the elimination of such Services from this Services Agreement, Albertson’s will receive credits against the fees payable pursuant to this Services Agreement as such credits are set forth on Exhibit G, and, if necessary, the parties will execute a letter agreement confirming the reduction as soon as reasonably practicable thereafter. (f) The parties agree to meet on or before September 20, 2013, to review the Services being provided and determine if there are any Services no longer required and which may be deleted from the Service schedules.

Appears in 1 contract

Sources: Transition Services Agreement (Supervalu Inc)

SERVICES TO BE PROVIDED. (a) ~~Notwithstanding anything~~ Unless otherwise agreed by the Parties, (1) Sellers shall use commercially reasonable efforts to perform, or to cause their respective Service Providers to perform the ~~contrary contained herein, other than as set forth on the applicable Schedule and subject to Sections 2.4 and 2.10 hereof,~~ Scheduled Services (i) ~~the Services to be provided by SVU as Service Provider hereunder shall be limited to (A) the Services with respect to which it~~ in a manner that is ~~listed as the Service Provider on Schedule 2 hereto, (B) as~~ substantially similar in all material respects to the ~~NAI business~~ manner in which ~~Albertson’s is acquiring, the~~ such Scheduled Services which SVU and its Affiliates have historically provided to the NAI-acquired business, and (C) the Services performed by SVU and its Affiliates for Albertson’s as of immediately prior to the date of the SPA; provided that any change in Services after the date of the SPA but prior to the Effective Date shall be approved by the Steering Committee, (ii) the Services to be provided by Albertson’s as Service Provider hereunder shall be limited to the Services with respect to which it is listed as the Service Provider on Schedule 2 hereto, and (iii) in no event shall the Service Provider be required to provide any other services to the Receiving Party. The parties acknowledge and agree that they have sought to identify all Services to be provided by the Service Provider under this Services Agreement on the Schedules hereto, but that if the Schedules do not include the Services were performed immediately prior to the ~~date of the SPA by the Service Provider, the parties shall cooperate after the~~ Phase II Closing Date to amend and/or supplement the Schedules hereto from time to time to more accurately reflect such past practice; provided, however, that (i) in no event will the Service Provider be obligated to provide any Service which (A) is listed on Schedule 2 as “deleted” or indicated in any way as no longer required or (B) is indicated to be provided only on a temporary basis and such time period has lapsed, subject to the possible extension of such Service in accordance with Section 3.3, and (ii) ~~Schedule 1 hereto sets forth the agreement~~ at a level of the parties with respect to procurement of goods for the Receiving Party and shall control that Service notwithstanding the past practices of the parties with respect to procurement of goods. (b) The Service Provider or its designees shall perform the Services only in a manner, scope, nature and quality (such manner, scope, nature and quality, ~~the “Applicable Service Level”) that is, in the case of SVU~~ responsiveness and timeliness at least as high as the ~~Service Provider, the same in all material respects as the manner in~~ level at which such Scheduled Services were performed ~~or to be performed by SVU and its Affiliates for Albertson’s as of immediately~~ prior to the ~~Date~~ Phase II Closing; (2) each of Sellers shall be required to perform, or to cause the ~~SPA~~other applicable Service Providers to perform, ~~or, where~~ all other Services in a specific service level has been provided, as set forth in the Schedules hereto and, in the case of Albertson’s as Service Provider, in the manner described on Schedule 2. For the avoidance of doubt, any change in service levels provided by professional manner; and (3) the Service ~~Provider to itself and its Affiliates after~~ Recipients shall use the ~~Date of the SPA shall not affect the Applicable Service Level to be provided to the Receiving Party pursuant to this~~ Scheduled Services ~~Agreement. Unless otherwise set forth herein or on the applicable Schedule, the Services provided hereunder shall be used by the Receiving Party~~ solely for substantially the same purposes and in substantially the same manner (including as to peak volume, amount, ~~level~~ level, or frequency, as applicable) as ~~such~~ the Services ~~were~~ have been used by ~~the Receiving Party as of immediately~~ Sellers prior to Phase II Closing Date. In no event shall the ~~Date~~ scope of any Scheduled Service required to be performed hereunder exceed that described on Schedule A unless otherwise agreed in writing. (b) If it is necessary for a Service Provider to increase staffing or acquire equipment or make any investments or capital expenditures or otherwise absorb or incur incremental expenses in order to provide any Service as a result of the ~~SPA. Notwithstanding~~ conversion or transition of such Service (including, for example, costs incurred by a Service Provider in order to segregate books and records for the ~~foregoing~~Service Recipient from other books and records of the Service Provider), and if the Service Recipient has previously approved such increase, acquisition, investment, expenditure or other expense in writing, the ~~parties acknowledge and agree that (1) Albertson’s acquisition of~~ Service Recipient agrees to reimburse the ~~NAI business shall not be deemed~~ applicable Service Provider an ~~increase of volume, amount, level or frequency, that SVU shall provide the Services contemplated herein~~ amount equal to the ~~NAI business~~reasonable, documented, actual costs and ~~that SVU’s provision of services to the NAI business shall include the services historically provided~~ expenses incurred by ~~SVU or its Affiliates to NAI (or which NAI provided to itself), as well as the Services identified on Schedule 2, and (2) Albertson’s~~ such Service Provider in connection therewith. Any request for ~~Services for New Stores as defined in Exhibit A~~ reimbursement hereunder shall not constitute an increase in volume, amount, level of frequency of Services. The Service Provider shall act under this Services Agreement solely as an independent contractor and not as an agent or employee of any other party or any of such party’s Affiliates. For the purposes of clarity, the parties acknowledge and agree that if and to the extent the Service Provider changes systems and processes used be included in the ~~course of its business for its own account the Service Provider shall not permit such changes to degrade the Applicable Service Level~~monthly statement described in Section 3.02(a) and paid in accordance with Section 3.02. (c) The Parties will use good faith efforts to reasonably cooperate with one another in all matters relating to the provision and receipt of ~~Services~~ Services, including by obtaining all consents, licenses or approvals from third parties necessary to permit the Service ~~Provider shall be subject~~ Providers to ~~Article V hereof.~~ perform their obligations hereunder (~~d) The parties have agreed to separate the Legal function of SVU and transition certain legal associates to Albertson’s over a period of up to ninety (90) days after the Effective Date (the~~ “~~Legal Transition Period~~Required Consents”). ~~At the Effective Date~~The Sellers represent that, ~~certain attorneys responsible~~ except for ~~the provision of certain Services to Albertson’s (the “Transitioned Attorneys”) will transition to~~ Required Consents from ▇▇▇▇▇▇▇▇▇▇.▇▇▇, and ~~become employed by Albertson’s at Albertson’s option. At some point during the Legal Transition Period~~▇▇▇▇ Systems Associates, Albertson’s will have the option to make Qualifying Offers (as defined in the SPA) to some or all of an additional group of identified members of the SVU Legal function. During the Legal Transition Period, the parties will cooperate Inc. and with respect to the ~~transition~~ existing ▇▇▇▇ system (the “▇▇▇▇ Consent”), to the Sellers’ Knowledge, following Sellers’ reasonable inquiry and investigation, there are no other outstanding Required Consents for the performance of ~~legal matters between them~~the Services hereunder. The Sellers agree that they will notify ReadyCap in writing promptly upon determining that any other Required Consent is required for the performance of the Services hereunder. The provision of any Services hereunder relating to the existing ▇▇▇▇ system, is subject to and conditioned upon the Service Recipients obtaining the ▇▇▇▇ Consent at its sole cost. Except as provided in the immediately preceding sentence, the Sellers shall use reasonable best efforts to minimize the costs of obtaining any Required Consent, and, if a third party requires payment of a consent or other fee in order for the Service Provider to perform its obligations hereunder, each of Buyers and Cortland, on the one hand, and each of Albertson’s (but only with respect to the services provided by the Transitioned Attorneys and only to the extent historically provided to SVU) and SVU will provide legal services pursuant to Schedule 2 heretoSellers, if needed, provided that (i) SVU may, in its discretion and at its expense, provide outside counsel (reasonably selected from a list of outside counsel used by Albertson’s prior to the Effective Date) in lieu of providing such legal services directly (it being understood that such outside counsel providing Services to Albertson’s hereunder will be acting on behalf of and as counsel for Albertson’s, and that (as between Albertson’s and SVU) Albertson’s will control the attorney-client relationship); (ii) neither party will in any case provide services with respect to commercial or other litigation that the other ~~party has agreed~~ hand, shall be responsible to ~~assume responsibility for, or to indemnify the other party or its Affiliates for, pursuant to the SPA~~ pay fifty percent (50%) of such costs; provided, however, that ~~SVU will continue to cooperate in providing in-house litigation support (other than litigation management) to~~ the ~~extent historically provided by SVU to Albertson’s~~ Buyers and Albertson’s acknowledges that during the Legal Transition Period in-house litigation support will continue to be provided to SVU by the remaining SVU legal function not hired by Albertson’s as of the Effective Date); (iii) SVU will not Cortland shall be responsible for ~~providing legal services~~ one-hundred percent (100%) of any such costs payable to ~~Albertson’s~~ ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or its affiliates. The fees listed on Schedule A are exclusive of any and all license fees, consent fees, upgrade fees, administrative fees and related costs and expenses that are required to be paid to obtain any Required Consent. For the avoidance of doubt, nothing in ~~quantities that exceed~~ the ~~historical levels provided by SVU~~ foregoing sentence is intended to ~~Albertson’s; and (iv) each party will~~ require ReadyCap or the Service Providers to bear any portion of any ongoing license or service fees charged in order to provide ~~any reasonable and customary waiver of conflicts of interest or similar waiver reasonably requested by~~ the other ~~party or any substituted outside counsel in connection~~ Party with the ~~legal~~ use of a third party’s products or services ~~provided pursuant to this~~ after the end of the Transition Services Agreement, provided that no such waiver shall materially disadvantage the other party with respect to any matter handled by such counsel. Upon the elimination of legal services as Services under this Services Agreement, there will be a dollar-for-dollar reduction in the fees payable during the Initial Term equal to the salary and benefits of each employee that transfers employment to Albertson’s pursuant to a Qualifying Offer (as defined in the SPA) made in Albertson’s sole discretion, and, if necessary, the parties will execute a letter agreement confirming the reduction as soon as reasonably possible thereafterTerm. (e) Similar to the legal transition referenced in Section 2.1(d), the parties have agreed to the elimination of additional Services originally contemplated to be provided by SVU pursuant to this Services Agreement by the employees of SVU and its Subsidiaries identified on Exhibit G. Upon the elimination of such Services from this Services Agreement, Albertson’s will receive credits against the fees payable pursuant to this Services Agreement as such credits are set forth on Exhibit G, and, if necessary, the parties will execute a letter agreement confirming the reduction as soon as reasonably practicable thereafter. (f) The parties agree to meet on or before September 20, 2013, to review the Services being provided and determine if there are any Services no longer required and which may be deleted from the Service schedules.

Appears in 1 contract

Sources: Asset Purchase Agreement (Sutherland Asset Management Corp)

SERVICES TO BE PROVIDED. (a) ~~Notwithstanding anything to~~ Unless otherwise agreed in writing by ----------------------- the contrary contained herein, other than as set forth on the applicable Schedule and subject to Sections 2.4 and 2.10 hereof, (i) the Services to be provided by SVU as Service Provider hereunder shall be limited to (A) the Services with respect to which it is listed as the Service Provider on Schedule 2 hereto, (B) as to the NAI business which Albertson’s is acquiringParties, the Services ~~which SVU and its Affiliates have historically provided to the NAI-acquired business, and (C) the Services~~ shall be performed by ~~SVU~~ the Provider for the Recipient at a quality level and ~~its Affiliates for Albertson’s as of immediately prior to~~ in a manner that are in substantially the date of the SPA; provided that any change in Services after the date of the SPA but prior to the Effective Date shall be approved by the Steering Committee, (ii) the Services to be provided by Albertson’s as Service Provider hereunder shall be limited to the Services with respect to which it is listed same as the ~~Service Provider on Schedule 2 hereto,~~ quality level and (iii) in no event shall the Service Provider be required to provide any other services to the Receiving Party. The parties acknowledge and agree that they have sought to identify all Services to be provided by the Service Provider under this Services Agreement on the Schedules hereto, but that if the Schedules do not include the Services performed immediately prior to the date of the SPA by the Service Provider, the parties shall cooperate after the Closing Date to amend and/or supplement the Schedules hereto from time to time to more accurately reflect such past practice; provided, however, that (i) in no event will the Service Provider be obligated to provide any Service which (A) is listed on Schedule 2 as “deleted” or indicated in any way as no longer required or (B) is indicated to be provided only on a temporary basis and such time period has lapsed, subject to the possible extension of such Service in accordance with Section 3.3, and (ii) Schedule 1 hereto sets forth the agreement of the parties with respect to procurement of goods for the Receiving Party and shall control that Service notwithstanding the past practices of the parties with respect to procurement of goods. (b) The Service Provider or its designees shall perform the Services only in a manner, scope, nature and quality (such manner, scope, nature and quality, the “Applicable Service Level”) that is, in the case of SVU as the Service Provider, the same in all material respects as the manner in which such Services were generally performed or prior to the date of this Agreement. It is intended that the Services be ~~performed~~ consistent with those Services provided in the ordinary course by ~~SVU~~ Parent and its Affiliates ~~for Albertson’s~~ or Technologies and its Affiliates, as ~~of immediately~~ the case may be, prior to the ~~Date~~ date hereof. (b) Nothing contained herein shall constitute or be deemed to constitute a partnership, joint venture or agency relationship between the Provider and the Recipient. The Provider shall not have any right or authority, and shall not attempt to enter into any contract, commitment, or agreement or incur any debt or liability, of ~~the SPA, or, where a specific service level has been provided, as set forth in the Schedules hereto and~~any nature, in the case of Albertson’s as Service Provider, in the manner described on Schedule 2. For the avoidance of doubt, any change in service levels provided by the Service Provider to itself and its Affiliates after the Date name of the SPA shall not affect the Applicable Service Level to be provided to the Receiving Party pursuant to this Services Agreement. Unless otherwise set forth herein or on the applicable Schedule, the Services provided hereunder shall be used by the Receiving Party for substantially the same purposes and in substantially the same manner (including as to volume, amount, level or frequency, as applicable) as such Services were used by the Receiving Party as of immediately prior to the Date of the SPA. Notwithstanding the foregoing, the parties acknowledge and agree that (1) Albertson’s acquisition of the NAI business shall not be deemed an increase of volume, amount, level or frequency, that SVU shall provide the Services contemplated herein to the NAI business, and that SVU’s provision of services to the NAI business shall include the services historically provided by SVU or its Affiliates to NAI (or which NAI provided to itself), as well as the Services identified on Schedule 2, and (2) Albertson’s request for Services for New Stores as defined in Exhibit A shall not constitute an increase in volume, amount, level of frequency of ServicesRecipient. The ~~Service~~ Provider shall act under this ~~Services~~ Agreement solely as an independent contractor and not as an agent of the Recipient. Nothing contained herein shall constitute or ~~employee~~ be deemed to constitute an employment relationship between the Recipient and the employees of the Provider engaged in the providing of Services. The Provider shall be solely responsible for the payment of compensation and benefits to its employees and any ~~other party~~ payments or ~~any~~ withholdings to governmental agencies relating to its employees, and the Provider shall make all staffing decisions and direct the performance of ~~such party’s Affiliates~~the Services. ~~For the purposes of clarity~~Recipient further acknowledges and agrees that, ~~the parties acknowledge and agree that if and~~ to the extent applicable, Provider will not become a fiduciary of any employee benefit plan of Recipient by reason of providing the ~~Service Provider changes systems and processes used in~~ Services, respectively, that relate to the ~~course~~ administration of ~~its business for its own account~~ benefit plans made available to employees of the ~~Service Provider shall not permit such changes to degrade the Applicable Service Level~~Business. (c) The ~~provision~~ Provider shall have the right to shut down temporarily for maintenance purposes the operation of ~~Services by~~ the facilities providing any Service whenever, in its reasonable discretion, such action is necessary; provided that the Provider shall use reasonable best efforts to schedule maintenance in consultation with the Recipient so as not to unreasonably interfere with the Recipient's business. If maintenance is non-scheduled, the Recipient shall be notified that maintenance is required. The Provider shall give the Recipient as much advance notice of any such shutdown as is reasonably practicable. Where feasible, this notice shall be given in writing. Where written notice is not feasible, oral notice shall be given and promptly confirmed in writing. The Provider shall be ~~subject~~ relieved of its obligations to ~~Article V hereof. (d) The parties have agreed~~ provide Services during the period that its facilities are so shut down but shall use reasonable best efforts to ~~separate the Legal function of SVU and transition certain legal associates to Albertson’s over a~~ minimize each period of up shutdown for such purpose and to ~~ninety (90) days after~~ schedule such shutdown so as not to inconvenience or disrupt the ~~Effective Date (~~operations of the ~~“Legal Transition Period”)~~Recipient. At In the ~~Effective Date~~event of a shutdown of the facilities that provide Services, ~~certain attorneys responsible for~~ the ~~provision~~ Provider shall furnish to the Recipient the same level and priority of ~~certain~~ Services ~~to Albertson’s (~~that the ~~“Transitioned Attorneys”) will transition to and become employed by Albertson’s at Albertson’s option. At some point~~ Provider's own business units receive during the ~~Legal Transition Period, Albertson’s will have the option to make Qualifying Offers (as defined in the SPA) to some~~ shutdown or all of an additional group of identified members of the SVU Legal function. During the Legal Transition Period, the parties will cooperate with respect to the transition of legal matters between them, and each of Albertson’s (but only with respect to the services provided by the Transitioned Attorneys and only to the extent historically provided to SVU) and SVU will provide legal services pursuant to Schedule 2 hereto, if needed, provided that (i) SVU may, in its discretion and at its expense, provide outside counsel (reasonably selected from a list of outside counsel used by Albertson’s prior to the Effective Date) in lieu of providing such legal services directly (it being understood that such outside counsel providing Services to Albertson’s hereunder will be acting on behalf of and as counsel for Albertson’s, and that (as between Albertson’s and SVU) Albertson’s will control the attorney-client relationship); (ii) neither party will in any case provide services with respect to commercial or other litigation that the other party has agreed to assume responsibility for, or to indemnify the other party or its Affiliates for, pursuant to the SPA (provided, however, that SVU will continue to cooperate in providing in-house litigation support (other than litigation management) to the extent historically provided by SVU to Albertson’s and Albertson’s acknowledges that during the Legal Transition Period in-house litigation support will continue to be provided to SVU by the remaining SVU legal function not hired by Albertson’s as of the Effective Date); (iii) SVU will not be responsible for providing legal services to Albertson’s in quantities that exceed the historical levels provided by SVU to Albertson’s; and (iv) each party will provide any reasonable and customary waiver of conflicts of interest or similar waiver reasonably requested by the other party or any substituted outside counsel in connection with the legal services provided pursuant to this Services Agreement, provided that no such waiver shall materially disadvantage the other party with respect to any matter handled by such counsel. Upon the elimination of legal services as Services under this Services Agreement, there will be a dollar-for-dollar reduction in the fees payable during the Initial Term equal to the salary and benefits of each employee that transfers employment to Albertson’s pursuant to a Qualifying Offer (as defined in the SPA) made in Albertson’s sole discretion, and, if necessary, the parties will execute a letter agreement confirming the reduction as soon as reasonably possible thereaftercurtailment. (e) Similar to the legal transition referenced in Section 2.1(d), the parties have agreed to the elimination of additional Services originally contemplated to be provided by SVU pursuant to this Services Agreement by the employees of SVU and its Subsidiaries identified on Exhibit G. Upon the elimination of such Services from this Services Agreement, Albertson’s will receive credits against the fees payable pursuant to this Services Agreement as such credits are set forth on Exhibit G, and, if necessary, the parties will execute a letter agreement confirming the reduction as soon as reasonably practicable thereafter. (f) The parties agree to meet on or before September 20, 2013, to review the Services being provided and determine if there are any Services no longer required and which may be deleted from the Service schedules.

Appears in 1 contract

Sources: Transition Services Agreement (FMC Technologies Inc)

Common use of SERVICES TO BE PROVIDED Clause in Contracts