Shared Contracts. From and after the Execution Date, Sellers and Company shall, and shall cause their respective Affiliates to, use their reasonable best efforts to work together (and, if necessary or desirable, to work with the third party(ies) to any Shared Contract or otherwise) to divide, partially assign, modify or replicate (in whole or in part) the respective rights and obligations under and in respect of any Shared Contract, such that, following the Closing, (a) the Company or a Company Subsidiary is the beneficiary of the rights, claims and benefits of the portion of such Shared Contract that is related to the Business and, is responsible for the obligations of the portion of such Shared Contract that corresponds to the rights, claims and benefits it is receiving thereunder (the “Buyer Portion”) on terms and conditions materially similar to those terms and conditions applicable as of the Execution Date or, if entered into after the Execution Date, as of immediately prior to the Closing, in each case as reasonably determined by the Sellers and Buyer in good faith, which rights, claims and benefits shall be an asset of, and which obligations corresponding thereto shall be a liability of, the Company or the Company Subsidiaries and (b) Sellers or an Affiliate of Sellers (for the avoidance of doubt, other than the Company or the Company Subsidiaries) is the beneficiary of the rights, claims and benefits and is responsible for the obligations related to the portion of such Shared Contract relating to the Sellers’ business (which shall not include the Business) and all such other obligations and Liabilities that are not the Buyer Portion (the “Sellers Portion”), which rights, claims and benefits shall be an asset of, and which obligations shall be a liability of, Sellers or an Affiliate of Sellers (for the avoidance of doubt, other than the Company or the Company Subsidiaries), as applicable; provided that in either case, neither Seller, the Buyer, the Company or their respective Affiliates shall be required to pay money to any third party, commence any Proceeding or offer or grant any other financial or other material non-financial accommodations in connection with such efforts. If the Sellers and Company or their respective Affiliates, as applicable, are not able to enter into an arrangement to divide, partially assign, modify or replicate (in whole or in part) the rights and obligations under and in respect of any such Shared Contract prior to the Closing, the Closing shall, subject to the satisfaction (or, to the extent permitted by applicable Law or the terms of this Agreement, the waiver by the parties entitled to the benefit thereof) of the conditions set forth in Article VIII, nonetheless take place on the terms set forth herein and, thereafter and until the earlier of (x) the date that the term of such Shared Contract expires in accordance with its terms following the Closing, (y) the date on which the division, partial assignment, modification or replication of such Shared Contract is effected as contemplated hereby and (z) twelve (12) months following the Closing, Sellers and their Affiliates, on the one hand, and the Company and the Company Subsidiaries, on the other hand, at the sole cost and expense of Sellers, reasonably cooperate and use their respective reasonable best efforts (including by entry into one or more commercial arrangements) so that (A) the Company and the Company Subsidiaries receive the interest in the rights, claims and benefits, and bear the responsibility for the obligations, in the Buyer Portion under and in respect of such Shared Contract and (B) Sellers or an Affiliate of the Sellers (for the avoidance of doubt, other than the Company or a Company Subsidiary) receives the interest in the rights, claims and benefits, and bear the responsibility for the obligations, in the Sellers Portion under and in respect of such Shared Contract. Notwithstanding anything to the contrary in this Agreement, (1) the Sellers or the Company, as applicable, shall be responsible for any or all Liabilities arising from its (or its Affiliates’) direct or indirect breach of any Shared Contract following the Closing, (2) Sellers shall be responsible for Sellers Portion of any Liabilities arising from or relating to any pre-Closing direct or indirect breach of any Shared Contract and (C) from and after the Execution Date, except as required by applicable Law or with the prior written consent of Buyer (not to be unreasonably withheld, condition or delayed), Seller Parent shall not, and shall cause its Affiliates not to, amend or modify any Shared Contract in a manner that is adverse to Buyer, any of its Affiliates or the Business in any material respect or terminate any Shared Contract (excluding, for the avoidance of doubt, any expiration or automatic extension or renewal of any such Shared Contract pursuant to its terms) or waive any material benefit or right under any Shared Contract to the extent such Shared Contract (or any portion thereof) is related to the Business, in each case, in a manner that would have a disproportionate adverse effect on the Business as compared to Seller Parent’s or its Affiliates’ other businesses.
Appears in 1 contract
Sources: Partnership Interest Purchase Agreement (MIDDLEBY Corp)
Shared Contracts. From and after the Execution Date, Sellers and Company shall, and shall cause their respective Affiliates to, use their reasonable best efforts to work together (and, if necessary or desirable, to work with the third party(ies) to any Shared Contract or otherwise) to divide, partially assign, modify or replicate (in whole or in part) the respective rights and obligations under and in respect of any Shared Contract, such that, following the Closing, (a) the Company or Schedule 2.7(a) sets forth a Company Subsidiary is the beneficiary list of the rightsall Shared Contracts, claims and benefits of the portion indicating which of such Shared Contract that is related Contracts may be assigned in part, pursuant to its terms, without the Business and, is responsible for the obligations consent of the portion counterparty thereto or other conditions, including the payment of such Shared Contract that corresponds to the rights, claims and benefits it is receiving thereunder a transfer or other fee (the “Assignable Shared Contracts”). Within seven (7) Business Days following the date of this Agreement, Buyer Portion”) on terms will provide the Sellers with written notice of those Assignable Shared Contracts that Buyer desires Acquisition Sub to assume in part. Each such Assignable Shared Contract for which Buyer provides written notice of its desire to assume in part shall thereafter be deemed to be a Transferred Contract hereunder with respect to the portion thereof assumed by Acquisition Sub and conditions materially similar the Seller party to those terms and conditions applicable such contract shall, or shall cause one or more of its Subsidiaries, as applicable, to, assign such assumed portion to Acquisition Sub as of the Execution Date orClosing in accordance with the terms of such Assignable Shared Contract.
(b) With respect to each Shared Contract identified on Schedule 2.7(a) that is not an Assignable Shared Contract (the “Non-Assignable Shared Contracts”), if entered into after Buyer will also, within seven (7) Business Days following the Execution Datedate of this Agreement, as provide the Sellers with written notice of immediately those Non-Assignable Shared Contracts that Buyer desires Acquisition Sub to assume in part. Each Party shall use its commercially reasonable efforts prior to the ClosingClosing Date to cause the counterparty to each such Non-Assignable Shared Contract to consent to the partial assignment of such Non-Assignable Shared Contract to Acquisition Sub, or to otherwise enter into a new Contract with Acquisition Sub on substantially the same terms as exist under the applicable Shared Contract, in each case as of the Closing. Each such Non-Assignable Shared Contract for which the parties have received consent to the partial assignment shall thereafter be deemed to be a Transferred Contract hereunder to the extent of the assigned portion and the Seller party to such contract shall, or shall cause one or more of its Subsidiaries, as applicable, to, partially assign to Acquisition Sub as of the Closing such Contract in accordance with its terms. The Sellers shall not, and shall not permit any of its Subsidiaries to, take any action to terminate prior to its expiration any Non-Assignable Shared Contract that is a Material Contract and which has been identified by Buyer as one it desires to assume pursuant to this subsection (b) (and for which an alternative, reasonably determined acceptable to Buyer, to such contract has not already been implemented by the Parties), or knowingly take any action or fail to take any action that would permit the other party to any such Non-Assignable Shared Contract to terminate prior to its expiration such Shared Contract, in each case, prior to the date that is twelve (12) months after the Closing Date (and provided that the foregoing shall not obligate a Seller or a Subsidiary to renew a contract after its then current term or prohibit it from terminating such contract for material breach, bankruptcy of the counterparty or other conditions of force majeure; provided, however, a Seller or a Subsidiary shall notify Buyer in writing at least thirty (30) days prior to any such expiration or termination and the Parties will reasonably and in good faith discuss what course of action best accommodates the interests of the Parties with respect to such contracts in light of the expiration or proposed termination, including the interest of Buyer in continuing to operate the Business, provided that during such period the Sellers shall not permit such Contract to lapse or terminate absent such agreement). Notwithstanding the foregoing, the Sellers shall not be required to partially assign to Acquisition Sub at Closing any of the Non-Assignable Shared Contracts for which consent has not been obtained.
(c) With respect to each Non-Assignable Shared Contract for which the arrangements described in Section 2.7(b) were not entered into prior to the Closing Date, the Sellers agree to continue to use their commercially reasonable efforts from and after the Closing Date to cause the counterparty to each such Non-Assignable Shared Contract to consent to the partial assignment of such Non-Assignable Shared Contract to Acquisition Sub, or to otherwise enter into a new Contract with Acquisition Sub or one or more of its Subsidiaries on substantially the same terms as exist under the applicable Shared Contract. Until any such consent or new Contract is obtained the Sellers and Buyer in good faith, which rights, claims and benefits shall be an asset of, and which obligations corresponding thereto shall be a liability of, the Company or the Company Subsidiaries and (b) Sellers or an Affiliate of Sellers (for the avoidance of doubt, other than the Company or the Company Subsidiaries) is the beneficiary of the rights, claims and benefits and is responsible for the obligations related to the portion of such Shared Contract relating to the Sellers’ business (which shall not include the Business) and all such other obligations and Liabilities that are not the Buyer Portion (the “Sellers Portion”), which rights, claims and benefits shall be an asset of, and which obligations shall be a liability of, Sellers or an Affiliate of Sellers (for the avoidance of doubt, other than the Company or the Company Subsidiaries), as applicable; provided that in either case, neither Seller, the Buyer, the Company or will use their respective Affiliates shall be required commercially reasonable efforts to pay money to cooperate, in any third party, commence any Proceeding or offer or grant any other financial or other material non-financial accommodations in connection with such efforts. If the Sellers lawful and Company or their respective Affiliates, as applicable, are not able to enter into an arrangement to divide, partially assign, modify or replicate (in whole or in part) the rights and obligations under and in respect of any such Shared Contract prior to the Closing, the Closing shall, subject to the satisfaction (orreasonable arrangement, to the extent permitted by such cooperation would not result in a breach of the terms of such Non-Assignable Shared Contract, and not prohibited under applicable Law law, which will provide Acquisition Sub the obligations and benefits of any such Non-Assignable Shared Contract with respect to the Business, including subcontracting, licensing, sublicensing, leasing or subleasing to Buyer and its Subsidiaries any or all of such Seller’s and its Subsidiaries’ rights and obligations with respect to such Non-Assignable Shared Contract with respect to the Business. In any such arrangement, Acquisition Sub will (i) bear the sole responsibility for completion of the work or provision of goods and services, (ii) bear all Taxes with respect thereto or arising therefrom to the extent attributable to any period or portion thereof beginning after the Closing Date, (iii) be solely entitled to all benefits thereof, economic or otherwise, (iv) be solely responsible for any warranty or breach thereof, any repurchase, indemnity and service obligations thereof, and (v) promptly reimburse the reasonable costs and expenses of the Sellers and their Affiliates related thereto; provided, however, that Acquisition Sub’s obligations under clauses (i) through (v) shall be limited to that portion of such Non-Assignable Shared Contract that Buyer has notified the Sellers pursuant to the first sentence of Section 2.7(b) that it desires to assume in part. If and when such consents or approvals are obtained or such other required actions have been taken, the partial assignment of such Non-Assignable Shared Contract will be effected in accordance with the terms of this Agreement, the waiver by the parties entitled to the benefit thereof) of the conditions set forth in Article VIII, nonetheless take place on the terms set forth herein and, thereafter and until the earlier of (x) the date that the term of such Shared Contract expires in accordance with its terms following the Closing, (y) the date on which the division, partial assignment, modification or replication of such Shared Contract is effected as contemplated hereby and (z) twelve (12) months following the Closing, Sellers and their Affiliates, on the one hand, and the Company and the Company Subsidiaries, on the other hand, at the sole cost and expense of Sellers, reasonably cooperate and use their respective reasonable best efforts (including by entry into one or more commercial arrangements) so that (A) the Company and the Company Subsidiaries receive the interest in the rights, claims and benefits, and bear the responsibility for the obligations, in the Buyer Portion under and in respect of such Shared Contract and (B) Sellers or an Affiliate of the Sellers (for the avoidance of doubt, other than the Company or a Company Subsidiary) receives the interest in the rights, claims and benefits, and bear the responsibility for the obligations, in the Sellers Portion under and in respect of such Shared Contract. Notwithstanding anything to the contrary in this Agreement, (1) the Sellers or the Company, as applicable, shall be responsible for any or all Liabilities arising from its (or its Affiliates’) direct or indirect breach of any Shared Contract following the Closing, (2) Sellers shall be responsible for Sellers Portion of any Liabilities arising from or relating to any pre-Closing direct or indirect breach of any Shared Contract and (C) from and after the Execution Date, except as required by applicable Law or with the prior written consent of Buyer (not to be unreasonably withheld, condition or delayed), Seller Parent shall not, and shall cause its Affiliates not to, amend or modify any Shared Contract in a manner that is adverse to Buyer, any of its Affiliates or the Business in any material respect or terminate any Shared Contract (excluding, for the avoidance of doubt, any expiration or automatic extension or renewal of any such Shared Contract pursuant to its terms) or waive any material benefit or right under any Shared Contract to the extent such Shared Contract (or any portion thereof) is related to the Business, in each case, in a manner that would have a disproportionate adverse effect on the Business as compared to Seller Parent’s or its Affiliates’ other businesses.
Appears in 1 contract
Shared Contracts. From and after the Execution Date, Sellers and Company shall, and shall cause their respective Affiliates to, use their reasonable best efforts to work together (and, if necessary or desirable, to work with the third party(ies) to any Shared Contract or otherwise) to divide, partially assign, modify or replicate (in whole or in part) the respective rights and obligations under and in respect of any Shared Contract, such that, following the Closing, (a) Within ten (10) days after the Company or Closing Date, Rubicon Tech Holdings shall provide Buyer with a Company Subsidiary is the beneficiary list indicating which of the rightsBusiness Shared Contracts may be split and assigned in part to Buyer or replicated for the benefit of Buyer pursuant to its terms, claims and benefits without the consent of the counterparty thereto or other conditions, including the payment of a transfer or other fee (the “Assignable Shared Contracts”). Each Assignable Shared Contract shall thereafter be deemed (to the extent of the split or replication with respect to the portion of such Non-Assignable Shared Contract that relates to the Technology Business) to be an Assigned Contract hereunder and Sellers shall split and partially assign (or cause to be split and partially assigned) to Buyer, or have or cause to be replicated, for the benefit of Buyer such Contract in accordance with its terms.
(b) With respect to each Business Shared Contract that is related not an Assignable Shared Contract (the “Non-Assignable Shared Contracts”), each Party shall use commercially reasonable efforts to cause the counterparty to each such Non-Assignable Shared Contract to consent to the Business and, is responsible for the obligations split and partial assignment or replication of such Non-Assignable Shared Contract to Buyer (with respect to the portion of such Non-Assignable Shared Contract that corresponds relates to the rightsTechnology Business), claims or to otherwise enter into a new Contract with Buyer on substantially the same terms as exist under the applicable Business Shared Contract. Each such Non-Assignable Shared Contract for which the Parties have received consent to the split and benefits it is receiving thereunder partial assignment or replication shall thereafter be deemed (to the “Buyer Portion”extent of the split or replication with respect to the portion of such Non-Assignable Shared Contract that relates to the Technology Business) on terms to be an Assigned Contract hereunder and conditions materially similar the applicable Seller shall split and partially assign (or cause to those terms be split and conditions applicable partially assigned) to Buyer, or have or cause to be replicated, as of the Execution Closing Date orsuch Contract in accordance with its terms. Notwithstanding the foregoing, if entered into Sellers and their Affiliates shall not be required to split and partially assign to Buyer or have replicated any of the Non-Assignable Shared Contracts for which Consent has not been obtained. To the extent any counterparty under a Non-Assignable Shared Contract requires the payment of a transfer or other fee for the split and partial assignment or replication of such Shared Contract, Rubicon Tech Holdings and Buyer shall each pay one half of any such fee that is reasonably required. With respect to any Non-Assignable Shared Contract, until the earlier of (i) the date that such Non-Assignable Shared Contract becomes an Assigned Contract pursuant to this Section 8.9(b) and (ii) the then-remaining term of such Non-Assignable Shared Contract, Buyer agrees to, or to cause its Affiliates to, perform under such Non-Assignable Shared Contract to the extent related to the Technology Business and to the extent required to be performed after the Execution Date, as of immediately prior to the Closing, in each case as reasonably determined by the Sellers and Buyer in good faith, which rights, claims and benefits shall be an asset of, and which obligations corresponding thereto shall be a liability of, the Company or the Company Subsidiaries and (b) Sellers or an Affiliate of Sellers (for the avoidance of doubt, other than the Company or the Company Subsidiaries) is the beneficiary of the rights, claims and benefits and is responsible for the obligations related to the portion of such Shared Contract relating to the Sellers’ business (which shall not include the Business) and all such other obligations and Liabilities that are not the Buyer Portion (the “Sellers Portion”), which rights, claims and benefits shall be an asset of, and which obligations shall be a liability of, Sellers or an Affiliate of Sellers (for the avoidance of doubt, other than the Company or the Company Subsidiaries), as applicable; provided that in either case, neither Seller, the Buyer, the Company or their respective Affiliates shall be required to pay money to any third party, commence any Proceeding or offer or grant any other financial or other material non-financial accommodations in connection with such efforts. If the Sellers and Company or their respective Affiliates, as applicable, are not able to enter into an arrangement to divide, partially assign, modify or replicate (in whole or in part) the rights and obligations under and in respect of any such Shared Contract prior to the Closing, the Closing shall, subject to the satisfaction (or, to the extent permitted by applicable Law or the terms of this Agreement, the waiver by the parties entitled to the benefit thereof) of the conditions set forth in Article VIII, nonetheless take place on the terms set forth herein and, thereafter and until the earlier of (x) the date that the term of such Shared Contract expires in accordance with its terms following the Closing, terms.
(yc) the date on As to any Non-Assignable Shared Contract for which the divisionParties have not received consent, the Parties agree to cooperate in good faith to take such actions as are reasonably necessary to avoid any breach or violation by a Party as a result of any failure to obtain any required consent. Until any such consent or new Contract is obtained, such Non-Assignable Shared Contract shall be subject to Section 8.2(b). If and when such consents or approvals are obtained or such other required actions have been taken, the split and partial assignment, modification or replication replication, of such Non-Assignable Shared Contract is will be effected as contemplated hereby and (z) twelve (12) months following the Closing, Sellers and their Affiliates, on the one hand, and the Company and the Company Subsidiaries, on the other hand, at the sole cost and expense of Sellers, reasonably cooperate and use their respective reasonable best efforts (including by entry into one or more commercial arrangements) so that (A) the Company and the Company Subsidiaries receive the interest in the rights, claims and benefits, and bear the responsibility for the obligations, in the Buyer Portion under and in respect of such Shared Contract and (B) Sellers or an Affiliate of the Sellers (for the avoidance of doubt, other than the Company or a Company Subsidiary) receives the interest in the rights, claims and benefits, and bear the responsibility for the obligations, in the Sellers Portion under and in respect of such Shared Contract. Notwithstanding anything to the contrary in this Agreement, (1) the Sellers or the Company, as applicable, shall be responsible for any or all Liabilities arising from its (or its Affiliates’) direct or indirect breach of any Shared Contract following the Closing, (2) Sellers shall be responsible for Sellers Portion of any Liabilities arising from or relating to any pre-Closing direct or indirect breach of any Shared Contract and (C) from and after the Execution Date, except as required by applicable Law or accordance with the prior written consent of Buyer (not to be unreasonably withheld, condition or delayedSection 8.9(b), Seller Parent shall not, and shall cause its Affiliates not to, amend or modify any Shared Contract in a manner that is adverse to Buyer, any of its Affiliates or the Business in any material respect or terminate any Shared Contract (excluding, for the avoidance of doubt, any expiration or automatic extension or renewal of any such Shared Contract pursuant to its terms) or waive any material benefit or right under any Shared Contract to the extent such Shared Contract (or any portion thereof) is related to the Business, in each case, in a manner that would have a disproportionate adverse effect on the Business as compared to Seller Parent’s or its Affiliates’ other businesses.
Appears in 1 contract
Sources: Asset Purchase Agreement (Rubicon Technologies, Inc.)
Shared Contracts. From Except as otherwise agreed by Seller and after Purchaser in writing or as otherwise provided in this Agreement or any of the Execution DateTransaction Agreements, Sellers and Company shalluntil the expiration date of any Shared Contract set forth on Section 3.17 of the Disclosure Letter (a “Specified Shared Contract”) (without giving effect to any extension thereof), the Parties shall (and shall cause their respective Affiliates to, ) use their commercially reasonable best efforts to work together (andobtain or structure an arrangement for Purchaser and its Affiliates to, if necessary or desirable, to work with the third party(ies) to any Shared Contract or otherwise) to divide, partially assign, modify or replicate (in whole or in part) the respective rights from and obligations under and in respect of any Shared Contract, such that, following after the Closing, obtain the claims, rights and benefits, and assume the corresponding Liabilities and obligations thereunder (a) other than to the Company extent related to or arising out of a Company Subsidiary is breach or other violation of such Shared Contract at or prior to the beneficiary Closing), of the rights, claims and benefits of the such portion of any such Shared Contract that is related to the Business and, is responsible for the obligations of the portion of such Shared Contract that corresponds to the rights, claims and benefits it is receiving thereunder (the “Buyer Portion”) on with terms and conditions materially similar to those terms and conditions applicable as of the Execution Date date hereof or, if entered into after the Execution Datedate hereof, as of immediately prior to the Closing, in each case as reasonably determined by the Sellers Seller and Buyer in good faithPurchaser; provided, which rightshowever, claims and benefits (A) that none of Purchaser or any of its Affiliates shall be an asset ofunder any obligation to enter into any such arrangement with respect to, or obtain any claims, rights and which benefits, or assume any corresponding Liabilities and obligations corresponding thereto shall be under, any Shared Contract that is not a liability ofSpecified Shared Contract, the Company or the Company Subsidiaries unless Purchaser and (b) Sellers or an Affiliate of Sellers (Seller agree in writing that they intend for the avoidance of doubt, other than the Company or the Company Subsidiaries) is the beneficiary of the rights, claims and benefits and is responsible for the obligations related to the portion of such Shared Contract relating to the Sellers’ business (which shall not include the Business) and all such other obligations and Liabilities that are not the Buyer Portion (the “Sellers Portion”), which rights, claims and benefits shall be an asset of, and which obligations shall be a liability of, Sellers or an Affiliate of Sellers (for the avoidance of doubt, other than the Company or the Company Subsidiaries), as applicable; provided that in either case, neither Seller, the Buyer, the Company or their respective Affiliates shall be required to pay money to any third party, commence any Proceeding or offer or grant any other financial or other material non-financial accommodations in connection with such efforts. If the Sellers and Company or their respective Affiliates, as applicable, are not able to enter into an arrangement to divide, partially assign, modify or replicate (in whole or in part) the rights and obligations under and in respect of any such Shared Contract prior to the Closing, the Closing shall, subject to the satisfaction (or, to the extent permitted by applicable Law or the terms of this Agreement, the waiver by the parties entitled to the benefit thereof) of the conditions set forth in Article VIII, nonetheless take place on the terms set forth herein and, thereafter and until the earlier of (x) the date that the term of such Shared Contract expires in accordance with its terms following the Closing, (y) the date on which the division, partial assignment, modification or replication of such Shared Contract is effected as contemplated hereby and (z) twelve (12) months following the Closing, Sellers and their Affiliates, on the one hand, and the Company and the Company Subsidiaries, on the other hand, at the sole cost and expense of Sellers, reasonably cooperate and use their respective reasonable best efforts (including by entry into one or more commercial arrangements) so that (A) the Company and the Company Subsidiaries receive the interest in the rights, claims and benefits, and bear the responsibility for the obligations, in the Buyer Portion under and in respect of such Specified Shared Contract and (B) Sellers Shared Contractual Liabilities pursuant to, under or an Affiliate relating to any Specified Shared Contract, shall be allocated between Seller and Purchaser as follows: (1) if a liability is incurred solely in respect of either the Business or the other businesses of Seller or any of its Affiliates, such liability shall be allocated to Purchaser (in respect of the Sellers Business) or Seller (for in respect of the avoidance other businesses of doubtSeller or any of its Affiliates); and (2) if a liability cannot be so allocated under clause (1), such liability shall be allocated to Purchaser and Seller based on the relative proportion of total benefit under such Specified Shared Contract received by Purchaser or its Subsidiaries in respect of the Business and Seller or any of its Affiliates (other than the Company or a Company SubsidiaryAcquired Companies) receives the interest in the rights, claims and benefits, and bear the responsibility for the obligations, in the Sellers Portion under and in respect of such Shared Contractits other businesses, as reasonably determined in good faith by Purchaser and Seller. Notwithstanding the foregoing or anything to the contrary in this Agreement, (1i) the Sellers Seller or the CompanyPurchaser, as applicable, shall be responsible for any or all Liabilities arising from its (or its Affiliates’) direct or indirect breach of any Specified Shared Contract following the ClosingContract, (2ii) Sellers Seller shall be responsible for Sellers Portion of any and all Liabilities arising from or relating to any of pre-Closing direct or indirect breach of any Specified Shared Contract and (Ciii) from Purchaser and after the Execution Date, except as required by applicable Law or with the prior written consent of Buyer (not to be unreasonably withheld, condition or delayed), Seller Parent shall not, and shall cause its their respective Affiliates not to, (A) amend or modify any Shared Contract in a manner that is adverse to Buyerthe other Person, any of its Affiliates or the Business in any material respect or terminate any Specified Shared Contract (excluding, for the avoidance of doubt, any expiration or automatic extension or renewal of any such Specified Shared Contract pursuant to its terms), or (B) or waive any material benefit or right under any Specified Shared Contract to of the extent such Shared Contract (other Person, any of its Affiliates, or any portion thereof) is related to the Business, in each case, in a manner that would have a disproportionate adverse effect on the Business as compared to Seller Parent’s or its Affiliates’ other businesses.
Appears in 1 contract
Shared Contracts. From (a) Buyer acknowledges that the Seller is a party to, or beneficiary of certain Contracts which relate in part to the Business and after in part to any other business or operations of the Execution DateSeller or any of its Affiliates (other than the Intercompany Agreements which are addressed in Section 6.11) (each, Sellers a “Shared Contract”) and Buyer agrees that (A) such Shared Contracts shall not be assigned in any way to Buyer or the Company shalland (B) neither Buyer nor the Company shall be entitled to any of the benefits provided in any Shared Contract following the Closing. To the extent necessary or advisable, Buyer shall (and shall cause their respective Affiliates the Company post-Closing to, ) use their commercially reasonable best efforts to work together (andassist the Seller with any amendment or termination, if necessary or desirableas applicable, to work with the third party(ies) to any Shared Contract or otherwise) to divide, partially assign, modify or replicate (in whole or in part) the respective rights and obligations under and in respect of any Shared Contract, so that (i) such Shared Contract reflects that, following the Closing, (a) the Interests will no longer be held by the Seller and the Company or a Company Subsidiary is the beneficiary will no longer be an Affiliate of the rightsSeller and (ii) as applicable, claims to remove and benefits of withdraw the portion of Company as a party to such Shared Contract and surrender any and all rights under such Shared Contract, and enter into new agreements directly between the Company and any applicable third parties to replace such Shared Contracts, as necessary, so that is related following such withdrawal there shall be no further rights or other obligations or liabilities under the existing Shared Contract on the part of any Person thereunder with respect to the Business and, is responsible for the obligations of the portion of such Shared Contract that corresponds Company. With respect to the rightsSlot Agreements, claims and benefits it is receiving thereunder (the “Buyer Portion”) on terms and conditions materially similar to those terms and conditions applicable as of the Execution Date or, if entered into after the Execution Date, as of immediately prior to the Closing, in each case as reasonably determined by the Sellers and Buyer in good faith, which rights, claims and benefits shall be an asset of, and which obligations corresponding thereto shall be a liability of, the Company at or the Company Subsidiaries and (b) Sellers or an Affiliate of Sellers (for the avoidance of doubt, other than the Company or the Company Subsidiaries) is the beneficiary of the rights, claims and benefits and is responsible for the obligations related to the portion of such Shared Contract relating to the Sellers’ business (which shall not include the Business) and all such other obligations and Liabilities that are not the Buyer Portion (the “Sellers Portion”), which rights, claims and benefits shall be an asset of, and which obligations shall be a liability of, Sellers or an Affiliate of Sellers (for the avoidance of doubt, other than the Company or the Company Subsidiaries), as applicable; provided that in either case, neither Seller, the Buyer, the Company or their respective Affiliates shall be required to pay money to any third party, commence any Proceeding or offer or grant any other financial or other material non-financial accommodations in connection with such efforts. If the Sellers and Company or their respective Affiliates, as applicable, are not able to enter into an arrangement to divide, partially assign, modify or replicate (in whole or in part) the rights and obligations under and in respect of any such Shared Contract prior to the Closing, the Closing shallBuyer or the Company shall enter into new agreements to replace and terminate any rights, subject obligations or liabilities related to the satisfaction (orCompany under the existing Slot Agreements and from any existing purchase orders, to leases, addendums or similar agreements entered into by the extent permitted by applicable Law Company or the terms of this AgreementSeller which would have remaining rights, the waiver by the parties entitled to the benefit thereof) of the conditions set forth in Article VIII, nonetheless take place on the terms set forth herein and, thereafter and until the earlier of (x) the date that the term of such Shared Contract expires in accordance with its terms obligations or liabilities following the Closing, and release any and all related Liens on the Company or its assets filed in connection with the Slot Agreements.
(yb) With respect to Shared Contracts with the date third parties and for the services indicated on which Schedule 6.12(b) of the divisionDisclosure Schedules, partial assignmentthe Seller agrees to cooperate with, modification or replication and to use commercially reasonable efforts to assist, for a period of such Shared Contract is effected as contemplated hereby and no longer than six (z) twelve (126) months following the ClosingClosing Date, Sellers at Buyer’s expense, Buyer in negotiating and their Affiliatesentering into new Contracts with the relevant counterparties as determined by Buyer, on the one hand, in order for Buyer to receive similar benefits and services to those provided to the Company and prior to the Company Subsidiaries, on Closing under the other hand, at the sole cost and expense of Sellers, reasonably cooperate and use their respective reasonable best efforts (including by entry into one or more commercial arrangements) so that (A) the Company and the Company Subsidiaries receive the interest in the rights, claims and benefits, and bear the responsibility for the obligations, in the Buyer Portion under and in respect of such applicable Shared Contract as such benefits and (B) Sellers services are used or an Affiliate of the Sellers (held for the avoidance of doubt, other than the Company or a Company Subsidiary) receives the interest use in the rights, claims and benefits, and bear the responsibility for the obligations, in the Sellers Portion under and in respect of such Shared Contract. Notwithstanding anything to the contrary in this Agreement, (1) the Sellers or the Company, as applicable, shall be responsible for any or all Liabilities arising from its (or its Affiliates’) direct or indirect breach of any Shared Contract following the Closing, (2) Sellers shall be responsible for Sellers Portion of any Liabilities arising from or relating to any pre-Closing direct or indirect breach of any Shared Contract and (C) from and after the Execution Date, except as required by applicable Law or connection with the prior written consent of Buyer (not to be unreasonably withheld, condition or delayed), Seller Parent shall not, and shall cause its Affiliates not to, amend or modify any Shared Contract in a manner that is adverse to Buyer, any of its Affiliates or the Business in any material respect or terminate any Shared Contract (excluding, for the avoidance of doubt, any expiration or automatic extension or renewal of any such Shared Contract pursuant to its terms) or waive any material benefit or right under any Shared Contract to the extent such Shared Contract (or any portion thereof) is related to the Business, in each case, in a manner that would have a disproportionate adverse effect on the Business as compared to Seller Parent’s or its Affiliates’ other businesses.
Appears in 1 contract
Shared Contracts. From (i) Section 5.05(b)(i)(1) of the Seller Disclosure Schedule contains each Material Shared Contract that primarily relates to the Business (excluding any Contracts listed on Section 2.01(c)(xii) of the Seller Disclosure Schedule) and Section 5.05(b)(i)(2) of the Seller Disclosure Schedule contains each Material Shared Contract that primarily relates to the Retained Business (excluding any Contracts listed on Section 2.01(c)(xii) of the Seller Disclosure Schedule). With respect to each Shared Contract that primarily relates to the Business (excluding any Enterprise-Wide Contracts and Contracts listed on Section 2.01(c)(xii) of the Seller Disclosure Schedule) (each, a “Transferred Shared Contract” and collectively, the “Transferred Shared Contracts”), Parent shall (and shall cause its Affiliates to), unless Buyer notifies Parent that it does not desire to inherit any Transferred Shared Contract, use commercially reasonable efforts to cause (i) prior to and after the Execution DateClosing each Transferred Shared Contract to be transferred and assigned to Buyer or a Subsidiary thereof designated by Buyer, Sellers at the Closing or any Later Closing, as applicable (or as soon thereafter as reasonably possible) and Company (ii) prior to any assignment to Buyer or any such Subsidiary, the counterparty to each Transferred Shared Contract to enter into a new contract or amendment with, or splitting, mirroring or assigning in relevant part such Transferred Shared Contract (a “Stand-Alone Transferred Contract”) to, on the best terms reasonably available, Parent or its Affiliates in order for Parent (or its Affiliates) to receive the applicable benefits under a Stand-Alone Transferred Contract as were provided under the applicable Transferred Shared Contract. After any assignment of a Transferred Shared Contract to Buyer or its Subsidiary (for which a Stand-Alone Transferred Contract does not yet exist), Buyer shall use its commercially reasonable efforts to cause the counterparty to each Transferred Shared Contract to enter into a new contract or amendment with, or splitting, mirroring or assigning in relevant part such Transferred Shared Contract to, on the best terms reasonably available, Parent or its Affiliates in order for Parent (or its Affiliates) to receive the applicable benefits under a Stand-Alone Transferred Contract as were provided under the applicable Transferred Shared Contract. With respect to each Shared Contract that primarily relates to the Retained Business (excluding any Enterprise-Wide Contracts and Contracts listed on Section 2.01(c)(xii) of the Seller Disclosure Schedule) (each, a “Retained Shared Contract” and collectively, the “Retained Shared Contracts”), Parent shall, and shall cause their respective Affiliates to, use their reasonable best efforts unless Buyer notifies Parent that it does not desire to work together (and, if necessary or desirable, to work with the third party(ies) to any Shared Contract or otherwise) to divide, partially assign, modify or replicate (in whole or in part) the respective rights and obligations under and in respect of any Shared Contract, such that, following the Closing, (a) the Company or a Company Subsidiary is the beneficiary of the rights, claims and benefits of inherit the portion of such any Retained Shared Contract that is related relates to the Business andBusiness, is responsible use its commercially reasonable efforts to cause the counterparty to each Retained Shared Contract to enter into a new contract or amendment with, or splitting, mirroring or assigning in relevant part such Retained Shared Contract (a “Stand-Alone Retained Contract” and together with each Stand-Alone Transferred Contract, the “Stand-Alone Contracts”) to, on the best terms reasonably available, Buyer or its Affiliates in order for Buyer (or its Affiliates) to receive the obligations applicable benefits under a Stand-Alone Retained Contract as were provided under the applicable Retained Shared Contract. The Parties acknowledge and agree that the intent of the foregoing obligations is that (x) Buyer or a Subsidiary thereof shall assume all of the rights and obligations, and Parent and its Subsidiaries will be released from all of the liabilities and obligations, under such portion of such the Shared Contract Contracts that corresponds Buyer desires to inherit and that relate to the rightsBusiness, claims on the one hand, and benefits it is receiving thereunder (the “Buyer Portion”y) on terms Parent and conditions materially similar to those terms and conditions applicable as its Subsidiaries will retain all of the Execution Date orrights and obligations, if entered into after and Buyer and its Subsidiaries will be released from all of the Execution Dateliabilities and obligations, as under such portion of immediately prior the Shared Contracts that relate to the ClosingRetained Business, on the other hand, in each case as reasonably determined by the Sellers and Buyer in good faithcase, which rights, claims and benefits shall be an asset of, and which obligations corresponding thereto shall be a liability of, the Company or the Company Subsidiaries and (b) Sellers or an Affiliate of Sellers (for the avoidance of doubt, other than the Company or the Company Subsidiaries) is the beneficiary of the rights, claims and benefits and is responsible for the obligations related to the portion of such Shared Contract relating to the Sellers’ business (which shall not include that the Business) and all such other obligations and Liabilities that are not the Buyer Portion (the “Sellers Portion”), which rights, claims and benefits shall be an asset of, and which obligations shall be a liability of, Sellers or an Affiliate of Sellers (for the avoidance of doubt, other than the Company or the Company Subsidiaries), as applicable; provided that in either case, neither Seller, the Buyer, the Company or their respective Affiliates shall be required to pay money to any third party, commence any Proceeding or offer or grant any other financial or other material non-financial accommodations in connection with such efforts. If the Sellers and Company or their respective Affiliates, as applicable, are not able to enter into an arrangement to divide, partially assign, modify or replicate (in whole or in part) the rights and obligations under and in respect of any such Shared Contract prior to the Closing, the Closing shall, subject to the satisfaction (or, to the extent permitted by applicable Law or the terms of this Agreement, the waiver by the parties entitled to the benefit thereof) of the conditions set forth in Article VIII, nonetheless take place on the terms set forth herein and, thereafter and until the earlier of (x) the date that the term of such Shared Contract expires in accordance with its terms following the Closing, (y) the date on which the division, partial assignment, modification or replication of such Shared Contract is effected as contemplated hereby and (z) twelve (12) months following the Closing, Sellers and their Affiliates, on the one hand, and the Company and the Company SubsidiariesRetained Business, on the other hand, at continue to derive substantially comparable use and benefit of such Shared Contracts as was in place prior to Closing. The costs of any fees or other payments to the sole cost counterparties under such Shared Contracts that may be necessary in connection with entering into any Stand-Alone Contract shall be borne 50% by Buyer and expense of Sellers50% by Parent; provided, reasonably cooperate and use their respective reasonable best efforts (including by entry into one or more commercial arrangements) so that if (A) the Company and the Company Subsidiaries receive the interest Buyer notifies Parent in the rights, claims and benefits, and bear the responsibility for the obligations, in the Buyer Portion under and in respect of such writing that it does not desire to inherit any Transferred Shared Contract or the portion of any Retained Shared Contract that relates to the Business, and (B) Sellers such notice is provided after any such costs have been incurred, Buyer shall bear 100% of any such costs solely related to the Business.
(ii) To the extent that any Seller’s rights under the Assumed Contracts may not be assigned without the consent of another Person, which consent has not been obtained prior to the Closing (or any Later Closing, with respect to the Assumed Contracts transferring at such Later Closing) (each, a “Retained TSA Contract”), this Agreement shall not constitute an Affiliate agreement to assign the same if an attempted assignment would constitute a breach thereof or be unlawful, and such Retained TSA Contracts shall not be assigned to Buyer, but shall be retained by such Seller or its applicable Subsidiary, subject to the services to be provided in respect thereof pursuant to the Transition Services Agreement, until such time (subject to the termination or expiration of Transition Services Agreement) as such consent shall have been obtained.
(iii) If, as of the Sellers Closing (for or applicable Later Closing, with respect to any Shared Contract intended to transfer at such Later Closing), any Shared Contract cannot be so apportioned or entered into in accordance with Section 5.05(b)(i), then until the avoidance of doubt, other than the Company or a Company Subsidiary) receives the interest in the rights, claims and benefits, and bear the responsibility for the obligations, in the Sellers Portion under and in respect earlier of such time as such Shared Contract. Notwithstanding anything Contract can be so apportioned and twenty-four (24) months following the Closing Date (or applicable Later Closing Date, with respect to any Shared Contract intended to transfer at such Later Closing), each Party will cooperate with the contrary in this Agreementother Party to establish an agency type or other similar arrangement reasonably satisfactory to both Parties (including by means of any subcontracting, sublicensing or subleasing arrangement) so that from and after the Closing (1or applicable Later Closing, with respect to any Shared Contract intended to transfer at or such Later Closing)
(A) the Sellers or the Company, as applicable, shall be responsible for any or all Liabilities arising from its Buyer (or its Affiliates’designated Subsidiary) direct or indirect breach obtains the benefits and burdens of any Shared Contract following to the Closing, (2) Sellers shall be responsible for Sellers Portion of any Liabilities arising from or extent relating to the Business and (ii) any pre-Closing direct Seller (or indirect breach its designated Subsidiary) obtains the benefits and burdens of any Shared Contract to the extent relating to the Retained Business, in each case, as if such Shared Contract had been apportioned in accordance with Section 5.05(b)(i) above. In furtherance of the foregoing, Buyer will promptly pay, perform or discharge when due any Liability (including any Liability for Taxes) arising thereunder in respect of the Business after the Closing Date (or applicable Later Closing Date, with respect to any Shared Contract intended to transfer at such Later Closing), and Seller will promptly pay, perform or discharge when due any Liability (Cincluding any Liability for Taxes) from arising thereunder in respect of the Retained Business after the Closing Date (or applicable Later Closing Date, with respect to any Shared Contract intended to transfer at such Later Closing).
(iv) From and after the Execution DateClosing (or applicable Later Closing, except as required by applicable Law or with the prior written consent of Buyer (not respect to be unreasonably withheld, condition or delayedany Shared Contract intended to transfer at such Later Closing), Seller Parent (i) Buyer and its Subsidiaries shall not, and shall cause its Affiliates not to, extend the term or otherwise amend or modify the terms of any Transferred Shared Contract in a manner that is would adversely affect any Seller or the Retained Business disproportionately to any adverse to Buyeraffect on Buyer and its Subsidiaries, without Parent’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) and (ii) Parent and its Subsidiaries (including the Sellers) shall not extend the term or otherwise amend the terms of any of Retained Shared Contract or Retained TSA Contract in a manner that would adversely affect Buyer or its Affiliates or the Business in disproportionately to any material respect adverse affect on Parent and its Subsidiaries, without Buyer’s prior written consent (which consent shall not be unreasonably withheld, conditioned or terminate any Shared Contract (excluding, for the avoidance of doubt, any expiration or automatic extension or renewal of any such Shared Contract pursuant to its terms) or waive any material benefit or right under any Shared Contract to the extent such Shared Contract (or any portion thereof) is related to the Business, in each case, in a manner that would have a disproportionate adverse effect on the Business as compared to Seller Parent’s or its Affiliates’ other businessesdelayed).
Appears in 1 contract
Shared Contracts. From and after (a) Schedule 1.7(a)(i) sets forth a list of all Shared Contracts, indicating which of such Shared Contracts may be assigned in part, pursuant to its terms, without the Execution Dateconsent of the counterparty thereto or other conditions, Sellers and Company shall, and shall cause their respective Affiliates to, use their reasonable best efforts including the payment of a transfer or other fee (the “Assignable Shared Contracts”). Schedule 1.7(a)(ii) sets forth a list of all Assignable Shared Contracts that Buyer desires to work together (and, if necessary or desirable, to work with the third party(ies) to any assume in part. Each Assignable Shared Contract or otherwiseset forth on Schedule 1.7(a)(ii) shall thereafter be deemed to divide, partially assign, modify or replicate be a Transferred Contract hereunder (in whole or in part) but solely to the respective extent of the rights and obligations under actually assigned to, and in respect of any Shared Contractassumed by, such that, following the Closing, (a) the Company Buyer or a Company Subsidiary is the beneficiary another member of the rightsBuyer Group) and Seller shall, claims and benefits or shall cause another member of the portion Seller Group, as applicable, to, partially assign to Buyer or another member of the Buyer Group as of the Closing such Contract in accordance with its terms.
(b) Schedule 1.7(b) sets forth a list of each Shared Contract identified on Schedule 1.7(a)(i) that is related to the Business and, is responsible for the obligations of the portion of such not an Assignable Shared Contract that corresponds to the rights, claims and benefits it is receiving thereunder (the “Buyer PortionNon-Assignable Shared Contracts”) on terms and conditions materially similar that Buyer desires to those terms and conditions applicable as of the Execution Date or, if entered into after the Execution Date, as of immediately assume in part. Each party shall use its commercially reasonable efforts prior to the ClosingClosing Date to cause the counterparty to each such Non-Assignable Shared Contract to consent to the partial assignment of such Non-Assignable Shared Contract to Buyer or another member of the Buyer Group, or to otherwise enter into a new Contract with Buyer or another member of the Buyer Group on substantially the same terms as exist under the applicable Shared Contract, in each case as reasonably determined of the Closing. Each such Non-Assignable Shared Contract for which the parties have received consent to the partial assignment shall thereafter be deemed to be a Transferred Contract hereunder (but solely to the extent of the rights and obligations actually assigned to, and assumed by Buyer or another member of the Sellers Buyer Group) and Seller shall, or shall cause another member of the Seller Group, as applicable, to, partially assign to Buyer or another member of the Buyer Group as of the Closing such Contract in accordance with its terms. Seller shall not, and shall not permit any other member of the Seller Group to, take any action to terminate prior to its expiration any Non-Assignable Shared Contract that is a Material Contract and which has been identified by Buyer on Schedule 1.7(b), or take any action or fail to take any action that would permit the other party to any such Non-Assignable Shared Contract to terminate prior to its expiration such Shared Contract, in each case, prior to the date that is twelve (12) months after the Closing Date. Notwithstanding the foregoing, Seller shall not be required to partially assign to Buyer or any other member of the Buyer Group at Closing any of the Non-Assignable Shared Contracts for which consent has not been obtained.
(c) With respect to each Non-Assignable Shared Contract for which the arrangements described in Section 1.7(b) could not be entered into prior to the Closing Date, Seller and Buyer each agrees to continue to use its commercially reasonable efforts from and after the Closing Date to cause the counterparty to each such Non-Assignable Shared Contract to consent to the partial assignment of such Non-Assignable Shared Contract to a member of the Buyer Group, or to otherwise enter into a new Contract with a member of the Buyer Group on substantially the same terms as exist under the applicable Shared Contract (which obligations to use commercially reasonable efforts shall end on the earlier to occur of the fifteen (15) month anniversary of the Closing Date or when the applicable Shared Contract expires by its terms). Subject to the other terms of this Section 1.7(c), until any such consent or new Contract is obtained, Seller and Buyer will use their respective commercially reasonable efforts to cooperate, in good faithany lawful and reasonable arrangement, to the extent such cooperation would not result in a breach of the terms of such Non-Assignable Shared Contract, and is not prohibited under applicable Law, which rightswill provide the Buyer Group the benefits and obligations of any such Non-Assignable Shared Contract to the extent relating to the Business, claims including subcontracting, licensing, sublicensing, leasing or subleasing to the Buyer Group any or all of the Seller Group’s rights and obligations with respect to such Non-Assignable Shared Contract to the extent relating to the Business. In any such arrangement, Buyer will (i) bear the sole responsibility for completion of the work or provision of goods and services, (ii) be solely entitled to all benefits shall be an asset ofthereof, economic or otherwise and which obligations corresponding thereto shall be a liability ofshall, the Company or the Company Subsidiaries and (b) Sellers or an Affiliate of Sellers (for the avoidance of doubt, other than the Company or the Company Subsidiariesbear all Tax liabilities attributable to Buyer’s beneficial interests in such Non-Assignable Shared Contracts hereunder, (iii) is the beneficiary of the rights, claims and benefits and is be solely responsible for any warranty or breach thereof, any repurchase, indemnity and service obligations thereof, and (iv) promptly reimburse the reasonable costs and expenses of Seller and its Affiliates related thereto; provided, however, that Buyer’s obligations related under clauses (i) through (iv) shall be limited to the that portion of such Non-Assignable Shared Contract relating to the Sellers’ business (which shall not include the Business) that Buyer has identified on Section 1.7(b). If and all when such consents or approvals are obtained or such other obligations and Liabilities that are not the Buyer Portion (the “Sellers Portion”), which rights, claims and benefits shall be an asset of, and which obligations shall be a liability of, Sellers or an Affiliate of Sellers (for the avoidance of doubt, other than the Company or the Company Subsidiaries), as applicable; provided that in either case, neither Sellerrequired actions have been taken, the Buyer, the Company or their respective Affiliates shall be required to pay money to any third party, commence any Proceeding or offer or grant any other financial or other material nonpartial assignment of such Non-financial accommodations in connection with such efforts. If the Sellers and Company or their respective Affiliates, as applicable, are not able to enter into an arrangement to divide, partially assign, modify or replicate (in whole or in part) the rights and obligations under and in respect of any such Assignable Shared Contract prior to the Closing, the Closing shall, subject to the satisfaction (or, to the extent permitted by applicable Law or will be effected in accordance with the terms of this Agreement, the waiver by the parties entitled to the benefit thereof.
(d) of the conditions set forth in Article VIII, nonetheless take place on the terms set forth herein and, thereafter and until the earlier of (x) the date that the term of such Shared Contract expires in accordance with its terms following the Closing, (y) the date on which the division, partial assignment, modification or replication of such Shared Contract is effected as contemplated hereby and (z) twelve (12) months following the Closing, Sellers and their Affiliates, on the one hand, and the Company and the Company Subsidiaries, on the other hand, at the sole cost and expense of Sellers, reasonably cooperate and use their respective reasonable best efforts (including by entry into one or more commercial arrangements) so that (A) the Company and the Company Subsidiaries receive the interest in the rights, claims and benefits, and bear the responsibility for the obligations, in the Buyer Portion under and in respect of such Shared Contract and (B) Sellers or an Affiliate of the Sellers (for the avoidance of doubt, other than the Company or a Company Subsidiary) receives the interest in the rights, claims and benefits, and bear the responsibility for the obligations, in the Sellers Portion under and in respect of such Shared Contract. Notwithstanding anything to the contrary in this AgreementSection 1.7, (1) the Sellers or the Company, as applicable, shall be responsible for any or all Liabilities arising from its (or its Affiliates’) direct or indirect breach of any Shared Contract following the Closing, (2) Sellers shall be responsible for Sellers Portion of any Liabilities arising from or relating parties may mutually agree to any pre-Closing direct or indirect breach of any Shared Contract and (C) from and after the Execution Date, except as alternative procedures to those required by applicable Law or with this Section 1.7 for effecting the prior written consent partial assignment of Buyer the Assignable Shared Contracts and the Non-Assignable Shared Contracts identified in Schedule 1.7(a)(ii) and Schedule 1.7 (not to be unreasonably withheld, condition or delayedb), Seller Parent shall notrespectively, and shall cause its Affiliates not to, amend or modify any Shared Contract in a manner that is adverse to Buyer, any of its Affiliates or the Business in any material respect or terminate any Shared Contract (excluding, for the avoidance of doubt, any expiration or automatic extension or renewal of any such Shared Contract pursuant to its terms) or waive any material benefit or right under any Shared Contract to the extent such Shared Contract (or any portion thereof) is related to the Business, in each case, in a manner that would have a disproportionate adverse effect on the Business as compared to Seller Parent’s or its Affiliates’ other businesses.
Appears in 1 contract
Sources: Asset Purchase Agreement (Logitech International Sa)
Shared Contracts. From and after the Execution Date, Sellers and Company shall, and shall cause their respective Affiliates to, use their reasonable best efforts to work together (and, if necessary or desirable, to work with the third party(ies) to any Shared Contract or otherwise) to divide, partially assign, modify or replicate (in whole or in part) the respective rights and obligations under and in respect of any Shared Contract, such that, following the Closing, (a) To the Company or a Company Subsidiary is the beneficiary extent any of the rightsShared Contracts may be split and assigned in part to Buyer or replicated for the benefit of Buyer pursuant to its terms, claims and benefits without the consent of the portion counterparty thereto or other conditions, including the payment of such Shared Contract that is related to the Business and, is responsible for the obligations of the portion of such Shared Contract that corresponds to the rights, claims and benefits it is receiving thereunder a transfer or other fee (the “Buyer PortionAssignable Shared Contracts”) on terms and conditions materially similar ), each such Assignable Shared Contract shall thereafter be deemed (to those terms and conditions applicable as the extent of the Execution Date or, if entered into after the Execution Date, as of immediately prior to the Closing, in each case as reasonably determined by the Sellers and Buyer in good faith, which rights, claims and benefits shall be an asset of, and which obligations corresponding thereto shall be a liability of, the Company split or the Company Subsidiaries and (b) Sellers or an Affiliate of Sellers (for the avoidance of doubt, other than the Company or the Company Subsidiaries) is the beneficiary of the rights, claims and benefits and is responsible for the obligations related replication with respect to the portion of such Assignable Shared Contract relating that relates to the Sellers’ business (which shall not include the Hospital & Large Physician Practice Business) and all such other obligations and Liabilities that are not the Buyer Portion (the “Sellers Portion”), which rights, claims and benefits shall to be an asset ofAssigned Contract hereunder and the applicable Seller Company shall split and partially assign (or cause to be split and partially assigned) to Buyer, and which obligations shall or have or cause to be a liability ofreplicated, Sellers or an Affiliate of Sellers (for the avoidance benefit of doubt, other than the Company or the Company Subsidiaries), Buyer as applicable; provided that in either case, neither Seller, the Buyer, the Company or their respective Affiliates shall be required to pay money to any third party, commence any Proceeding or offer or grant any other financial or other material non-financial accommodations in connection with such efforts. If the Sellers and Company or their respective Affiliates, as applicable, are not able to enter into an arrangement to divide, partially assign, modify or replicate (in whole or in part) the rights and obligations under and in respect of any such Shared Contract prior to the Closing, the Closing shall, subject to the satisfaction (or, to the extent permitted by applicable Law or the terms of this Agreement, the waiver by the parties entitled to the benefit thereof) of the conditions set forth in Article VIII, nonetheless take place on the terms set forth herein and, thereafter and until the earlier of (x) the date that the term of Date such Shared Contract expires in accordance with its terms following the Closingterms.
(b) Schedule 7.12(b) sets forth a list of each Non-Assignable Shared Contract. As used herein, “Non-Assignable Shared Contracts” means each Shared Contract that (x) is not an Assignable Shared Contract and (y) the counterparty to such Shared Contract is a Significant Customer or Significant Vendor. Within twenty (20) days after the date hereof, Buyer shall provide Parent with a list of each Non-Assignable Shared Contract, if any, for which Buyer requests that Parent seek such counterparty’s permission to split and partially assign (or replicate) such Non-Assignable Shared Contract (the “Designated Non-Assignable Shared Contracts”). Each Party shall use commercially reasonable efforts to cause the counterparty to each such Designated Non-Assignable Shared Contract to consent to the split and partial assignment or replication of such Designated Non-Assignable Shared Contract to Buyer (with respect to the portion of such Designated Non-Assignable Shared Contract that relates to the Hospital & Large Physician Practice Business), or to otherwise enter into a new Contract with Buyer on substantially the same terms as exist under the applicable Shared Contract as of the Closing Date. Each such Designated Non-Assignable Shared Contract for which the divisionParties have received consent to the split and partial assignment or replication shall thereafter be deemed (to the extent of the split or replication with respect to the portion of such Designated Non-Assignable Shared Contract that relates to the Hospital & Large Physician Practice Business) to be an Assigned Contract hereunder and the applicable Seller Company shall split and partially assign (or cause to be split and partially assigned) to Buyer, or have or cause to be replicated, as of the Closing Date such Contract in accordance with its terms. Notwithstanding the foregoing, the Seller Companies and their Affiliates shall not be required to split and partially assign to Buyer or have replicated any of the Non-Assignable Shared Contracts for which consent has not been obtained; provided such portion of the Non-Assignable Shared Contract related to the Hospital & Large Physician Practice Business is treated as a Restricted Item under Section 7.8. To the extent any counterparty under a Non-Assignable Shared Contract requires the payment of a transfer or other fee for the split and partial assignment, modification assignment or replication of such Shared Contract is effected as contemplated hereby Contract, Parent and (z) twelve (12) months following the Closing, Sellers and their Affiliates, on the Buyer shall each pay one hand, and the Company and the Company Subsidiaries, on the other hand, at the sole cost and expense of Sellers, reasonably cooperate and use their respective reasonable best efforts (including by entry into one or more commercial arrangements) so that (A) the Company and the Company Subsidiaries receive the interest in the rights, claims and benefits, and bear the responsibility for the obligations, in the Buyer Portion under and in respect of such Shared Contract and (B) Sellers or an Affiliate of the Sellers (for the avoidance of doubt, other than the Company or a Company Subsidiary) receives the interest in the rights, claims and benefits, and bear the responsibility for the obligations, in the Sellers Portion under and in respect of such Shared Contract. Notwithstanding anything to the contrary in this Agreement, (1) the Sellers or the Company, as applicable, shall be responsible for any or all Liabilities arising from its (or its Affiliates’) direct or indirect breach of any Shared Contract following the Closing, (2) Sellers shall be responsible for Sellers Portion of any Liabilities arising from or relating to any pre-Closing direct or indirect breach of any Shared Contract and (C) from and after the Execution Date, except as required by applicable Law or with the prior written consent of Buyer (not to be unreasonably withheld, condition or delayed), Seller Parent shall not, and shall cause its Affiliates not to, amend or modify any Shared Contract in a manner that is adverse to Buyer, any of its Affiliates or the Business in any material respect or terminate any Shared Contract (excluding, for the avoidance of doubt, any expiration or automatic extension or renewal half of any such Shared Contract pursuant to its terms) or waive any material benefit or right under any Shared Contract to the extent such Shared Contract (or any portion thereof) fee that is related to the Business, in each case, in a manner that would have a disproportionate adverse effect on the Business as compared to Seller Parent’s or its Affiliates’ other businessesreasonably required.
Appears in 1 contract
Sources: Purchase Agreement (Allscripts Healthcare Solutions, Inc.)
Shared Contracts. From and after the Execution DateSubject to Schedule 7.6, Sellers and Company shall, and each Seller shall cause their respective Affiliates to, use their its commercially reasonable best efforts to work together (and, if necessary or desirable, cause the Shared Contracts to work with the third party(ies) to any Shared Contract or otherwise) to divide, partially assign, modify or replicate (be assigned in whole or in part) part or otherwise replaced with separate contracts “mirroring” the respective rights and obligations under and in respect terms of any the applicable Shared Contract, such that, following the Closing, Contracts so that (a) the Company or a Company Subsidiary is the beneficiary of the rights, claims and benefits of the portion of such Shared Contract that is related to the Business and, is responsible for the obligations of the portion of such Shared Contract that corresponds to the rights, claims and benefits it is receiving thereunder (the “applicable Buyer Portion”) on terms and conditions materially similar to those terms and conditions applicable as of the Execution Date or, if entered into after the Execution Date, as of immediately prior to the Closing, in each case as reasonably determined by the Sellers and Buyer in good faith, which rights, claims and benefits shall be an asset of, and which obligations corresponding thereto shall be a liability of, the Company or the Company Subsidiaries and (b) Sellers or an Affiliate of Sellers (for the avoidance of doubt, other than the Company or the Company Subsidiaries) is the beneficiary of the rights, claims and benefits and is responsible for the obligations related entitled to the portion of such Shared Contract relating to the Sellers’ business (which shall not include the Business) and all such other obligations and Liabilities that are not the Buyer Portion (the “Sellers Portion”), which rights, claims and benefits shall be an asset of, and which obligations shall be a liability of, Sellers or an Affiliate of Sellers (for the avoidance of doubt, other than the Company or the Company Subsidiaries), as applicable; provided that in either case, neither Seller, the Buyer, the Company or their respective Affiliates shall be required to pay money to any third party, commence any Proceeding or offer or grant any other financial or other material non-financial accommodations in connection with such efforts. If the Sellers and Company or their respective Affiliates, as applicable, are not able to enter into an arrangement to divide, partially assign, modify or replicate (in whole or in part) the rights and obligations under benefits, and in respect shall assume the related portion of any Liabilities, inuring to the CIED Business or the Products to the same extent received and borne by such Seller in accordance with such Shared Contract prior to such assignment or separation; provided, that the Closing, the Closing shall, subject Buyers shall assume Liabilities under such Shared Contracts solely to the satisfaction extent that such Liabilities would constitute Assumed Liabilities if the portion of the Shared Contract inuring to the CIED Business and Products had constituted an Assumed Contract that had been transferred to the Buyers and (orb) the applicable Seller shall be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to the Excluded Assets or any other businesses of such Seller (other than the CIED Business) to the same extent received and borne in accordance with such Shared Contract prior to such separation or assignment. Subject to Schedule 7.6, in the event any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or separated, then the parties shall take such other reasonable and legally permissible actions (including by providing prompt notice to the other party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other party the ability to exercise any applicable rights under such Shared Contract) to cause the applicable Buyer to receive the rights and benefits of that portion of each Shared Contract that relates to the CIED Business or Products, as the case may be (in each case, to the extent permitted by applicable Law or the terms of this Agreementso related), the waiver by the parties entitled to the benefit thereof) of the conditions set forth in Article VIII, nonetheless take place on the terms set forth herein and, thereafter and until the earlier of (x) the date that the term of as if such Shared Contract expires in accordance with its terms following the Closing, (y) the date on which the division, partial assignment, modification or replication of such Shared Contract is effected as contemplated hereby and (z) twelve (12) months following the Closing, Sellers and their Affiliates, on the one hand, and the Company and the Company Subsidiaries, on the other hand, at the sole cost and expense of Sellers, reasonably cooperate and use their respective reasonable best efforts (including by entry into one or more commercial arrangements) so that (A) the Company and the Company Subsidiaries receive the interest in the rights, claims and benefits, and bear the responsibility for the obligations, in the Buyer Portion under and in respect of such Shared Contract and (B) Sellers or an Affiliate of the Sellers (for the avoidance of doubt, other than the Company or a Company Subsidiary) receives the interest in the rights, claims and benefits, and bear the responsibility for the obligations, in the Sellers Portion under and in respect of such Shared Contract. Notwithstanding anything had been assigned to the contrary in this Agreement, (1) the Sellers or the Company, as applicable, shall be responsible for any or all Liabilities arising from its (or its Affiliates’amended to allow) direct or indirect breach of any Shared Contract following the Closing, (2) Sellers shall be responsible for Sellers Portion of any Liabilities arising from or relating to any pre-Closing direct or indirect breach of any Shared Contract and (C) from and after the Execution Date, except as required by applicable Law or with the prior written consent of such Buyer (not to be unreasonably withheld, condition or delayed), Seller Parent shall not, and shall cause its Affiliates not to, amend or modify any Shared Contract in a manner that is adverse to Buyer, any of its Affiliates or the Business in any material respect or terminate any Shared Contract (excluding, for the avoidance of doubt, any expiration or automatic extension or renewal of any such Shared Contract pursuant to its terms) or waive any material benefit or right under any Shared Contract to the extent such Shared Contract (or any portion thereof) is related to the Business, in each case, in a manner that would have a disproportionate adverse effect on the Business as compared to Seller Parent’s or its Affiliates’ other businessesthis Section 7.6.
Appears in 1 contract
Shared Contracts. From (a) Until the earlier of (1) the expiration or termination date (in accordance with their terms) of any applicable Shared Contracts set forth on Schedule 6.1(a) (such Shared Contracts, collectively, the “Specified Shared Contracts”) and (2) sixty (60) days after the Execution Closing Date, Sellers and Company the Seller shall, and shall cause their respective Affiliates its Seller Group to, use their commercially reasonable best efforts to, (i) as soon as reasonably practicable after the Closing Date, cause the counterparty to work together (and, if necessary or desirable, to work with the third party(ies) to any each Specified Shared Contract or otherwise) to divide, partially assign, modify or replicate (in whole or in part) consent to the respective partial assignment of those rights and obligations under and in respect of any Shared Contract, such that, following the Closing, (a) the Company or a Company Subsidiary is the beneficiary of the rights, claims and benefits of the portion of applicable Seller Related Party under such Specified Shared Contract that is related to the Business andBusiness, is responsible for and (ii) in the obligations of the portion of event any such Specified Shared Contract that corresponds to the rights, claims and benefits it is receiving thereunder (the “Buyer Portion”) on terms and conditions materially similar to those terms and conditions applicable as of the Execution Date or, if entered into after the Execution Date, as of immediately prior to the Closing, in each case as reasonably determined by the Sellers and Buyer in good faith, which rights, claims and benefits shall cannot be an asset of, and which obligations corresponding thereto shall be a liability of, the Company or the Company Subsidiaries and (b) Sellers or an Affiliate of Sellers (for the avoidance of doubt, other than the Company or the Company Subsidiaries) is the beneficiary of the rights, claims and benefits and is responsible for the obligations related to the portion of such Shared Contract relating to the Sellers’ business (which shall not include the Business) and all such other obligations and Liabilities that are not the Buyer Portion (the “Sellers Portion”), which rights, claims and benefits shall be an asset of, and which obligations shall be a liability of, Sellers or an Affiliate of Sellers (for the avoidance of doubt, other than the Company or the Company Subsidiaries), as applicable; provided that in either case, neither Seller, the Buyer, the Company or their respective Affiliates shall be required to pay money to any third party, commence any Proceeding or offer or grant any other financial or other material non-financial accommodations in connection with such efforts. If the Sellers and Company or their respective Affiliates, as applicable, are not able to enter into an arrangement to divide, so partially assign, modify or replicate (in whole or in part) the rights and obligations assigned under and in respect of any such Shared Contract prior to the Closing, the Closing shall, subject to the satisfaction (or, to the extent permitted by applicable Law or the terms of this Agreementthe applicable Specified Shared Contract, or if the counterparty otherwise does not consent to such partial assignment, otherwise reasonably cooperate with the Buyer in the Buyer’s efforts to enter into a new Contract with such counterparty (such new Contracts, the waiver by “New Contracts”), (A) on terms that are similar in all material respects to such Specified Shared Contracts and (B) in a manner that ensures there is no interruption or discontinuation of service to the Business, in each case from and after the Effective Time. The portion exclusively related to the Business of each such Specified Shared Contract for which the parties entitled have received consent to such partial assignment shall thereafter be deemed to be an Assigned Contract for all purposes hereunder.
(b) In the benefit thereof) event any Specified Shared Contract cannot be so partially assigned under applicable Law or the terms of the conditions set forth in Article VIIIapplicable Specified Shared Contract, nonetheless take place on or if the terms set forth herein andcounterparty otherwise does not consent to such partial assignment or to entering into a New Contract, thereafter and the parties hereto shall, until the earlier of (x1) the expiration or termination date that of the term of such applicable Specified Shared Contract expires in accordance with its terms following the Closing, (y) the date on which the division, partial assignment, modification or replication of such Shared Contract is effected as contemplated hereby and (z2) twelve sixty (1260) months days after the Closing Date, cooperate with each other and, following good faith discussions between the Closingparties hereto, Sellers and their use reasonable best efforts to seek to obtain or structure mutually acceptable alternative arrangements for the Buyer or one of its Affiliates, on the one hand, and the Company and the Company Subsidiariesapplicable Seller Related Party, on the other hand, at the sole cost and expense of Sellers, reasonably cooperate and use their respective reasonable best efforts (including by entry into one or more commercial arrangements) so that (A) the Company and the Company Subsidiaries receive the interest in the rights, claims receiving rights and benefits, and bearing Liabilities, to the extent related to their respective businesses (provided that such arrangements shall not result in a breach or violation of such Specified Shared Contract or applicable Law). Such alternative arrangements may include a subcontracting, sublicensing, subleasing or other similar arrangements under which the Buyer or one of its Affiliates would, in compliance with applicable Law, obtain the benefits under, and, to the extent first arising after the Closing, assume the obligations and bear the responsibility economic burdens associated with, such Specified Shared Contracts solely to the extent related to the Business (or applicable portion thereof) and under which the applicable Seller Related Party would, upon the Buyer’s or such Affiliate’s request, use reasonable best efforts to enforce for the obligations, in benefit (and at the expense) of the Buyer Portion or such Affiliate any and all of such Seller Related Party’s rights against such Third Party under such Specified Shared Contract solely to the extent related to the Business (or applicable portion thereof), and the Seller or the applicable Seller Related Party would promptly pay to the Buyer or such Affiliate when received all monies received by them from time to time pursuant to such enforcement under such Specified Shared Contracts solely to the extent related to the Business (or applicable portion thereof), after deduction for any costs or expenses incurred by the Seller or the applicable Seller Related Party.
(c) With respect to Liabilities, rights and benefits pursuant to, under or relating to a given Specified Shared Contract, relating to occurrences from and after the Closing, such Liabilities, rights and benefits shall be allocated between the Buyer and the Seller as follows:
(i) If a Liability is incurred, or if a right or benefit is obtained, exclusively in respect of such Shared Contract and (B) Sellers the Business or an Affiliate of the Sellers (for the avoidance of doubt, other than the Company or a Company Subsidiary) receives the interest in the rights, claims and benefits, and bear the responsibility for the obligations, in the Sellers Portion under and exclusively in respect of the Excluded Business, such Liability, right or benefit shall be allocated to the Buyer or its applicable Affiliate (in respect of the Business) or the Seller or the applicable member of the Seller Group (in respect of the Excluded Business);
(ii) If a Liability, right or benefit cannot be so allocated under clause (i) above, such Liability, right or benefit shall be allocated to the Buyer or the Seller, as the case may be, based on the relative proportions of total benefit received (over the term of the Specified Shared Contract remaining as of the Closing Date, measured as of the date of the allocation) by the Business or the Excluded Business (as applicable) under the relevant Specified Shared Contract. Notwithstanding anything to the contrary in this Agreementforegoing, (1) each of the Sellers or Buyer and the Company, as applicable, Seller shall be responsible for any or all Liabilities to the extent related to, resulting from, or arising from out of its (or its controlled Affiliates’) direct or indirect breach of, or actions under, the relevant Specified Shared Contract.
(d) If the Seller or any member of the Seller Group, on the one hand, or the Buyer or any member of the Seller Group, on the other hand, receives any benefit or payment under any Specified Shared Contract following that relate to the ClosingBusiness (or applicable portion thereof) or the Excluded Business (or applicable portion thereof), respectively, the Seller and the Buyer (2as applicable) Sellers shall use their respective reasonable best efforts to, and to cause their respective controlled Affiliates to, promptly deliver such benefit or payment to the other party.
(e) The Shared Contracts set forth on Schedule 6.1(e) (such Shared Contracts, collectively, the “Retained Shared Contracts”) shall initially be responsible for Sellers Portion Excluded Assets. For a period of any Liabilities arising from or relating to any pre-Closing direct or indirect breach of any Shared Contract and (C) from and 75 days after the Execution Closing Date, except as required by applicable Law the Seller shall not waive, amend, or with otherwise modify any rights under the Retained Contracts to the extent related to the Business without the prior written consent of the Buyer. If the Buyer (not notifies the Seller within 75 days after the Closing Date that the Buyer desires to be unreasonably withheld, condition or delayed), Seller Parent shall not, and shall cause its Affiliates not to, amend or modify any assigned the portion of a Retained Shared Contract in a manner that is adverse to Buyer, any of its Affiliates or the Business in any material respect or terminate any Shared Contract (excluding, for the avoidance of doubt, any expiration or automatic extension or renewal of any such Shared Contract pursuant to its terms) or waive any material benefit or right under any Shared Contract to the extent such Shared Contract (or any portion thereof) is related to the Business, it shall so notify the Seller in each casewriting and upon delivery of such written notice to the Seller, in a manner and Section 6.1(a) through Section 6.1(d) shall apply mutatis mutandis; provided that would “Closing Date” therein shall refer to the date of such written notice to the Seller. If the Buyer does not provide such notice of assignment within 75 days after the Closing Date, the Seller shall have a disproportionate adverse effect on right to terminate, waive, amend or modify all or any rights under the Business as compared Retained Shared Contracts and shall have no further obligations to Seller Parent’s the Buyer in respect of such Retained Shared Contracts or its Affiliates’ other businessesany rights thereunder.
Appears in 1 contract
Sources: Asset Purchase Agreement (Cidara Therapeutics, Inc.)
Shared Contracts. From (a) TKO acknowledges that the members of the EDR Group are party to certain Contracts (including sales orders and purchase orders, but excluding Contracts for goods or services to be provided under the Transition Services Agreement) that relate both to the Businesses and one or more of the Excluded EDR Businesses (each, a “Shared Contract”). Prior to the Closing, and until the expiration or termination date of the applicable Shared Contract (but if the term in indefinite, only for two (2) years after the Execution DateClosing), Sellers each of the EDR Parties and Company TKO shall, and shall cause the other members of the EDR Group and their respective Affiliates toAffiliates, respectively, to use their reasonable best efforts to work together obtain from each third party to a Shared Contract, either (and, if necessary i) a separate contract or desirable, to work with agreement (a “New Contract”) that allocates the third party(ies) to any Shared Contract or otherwise) to divide, partially assign, modify or replicate (in whole or in part) the respective rights and obligations under and in respect of any Shared Contract, such that, following the Closing, (a) the Company or a Company Subsidiary is the beneficiary of the rights, claims and benefits of the portion of EDR Group under each such Shared Contract as between the Businesses, on the one hand, and the Excluded EDR Businesses, on the other hand, and which, as it relates to the Businesses, are otherwise substantially similar in all material respects to such Shared Contract (or on terms that is are otherwise reasonably acceptable to TKO and the EDR Parties), or (ii) a Contract or agreement effective as of the Closing (the “Partial Assignments and Releases”) that assigns the rights and obligations of the EDR Group under such Shared Contract to the extent related to the Business andBusinesses to the Transferred Entities, is responsible for or assigns the rights and obligations of the portion of EDR Group under such Shared Contract that corresponds to the rights, claims and benefits it is receiving thereunder (the “Buyer Portion”) on terms and conditions materially similar to those terms and conditions applicable as of the Execution Date or, if entered into after the Execution Date, as of immediately prior to the Closing, in each case as reasonably determined by the Sellers and Buyer in good faith, which rights, claims and benefits shall be an asset of, and which obligations corresponding thereto shall be a liability of, the Company or the Company Subsidiaries and (b) Sellers or an Affiliate of Sellers (for the avoidance of doubt, other than the Company or the Company Subsidiaries) is the beneficiary of the rights, claims and benefits and is responsible for the obligations extent related to the portion Excluded EDR Businesses to a member of the Remaining EDR Group, as applicable (in each case, including by amending such Shared Contract relating to remove the Sellers’ business (which shall not include applicable member of the Business) and all such other obligations and Liabilities that are not EDR Group as a party thereto). None of the Buyer Portion (the “Sellers Portion”)EDR Parties, which rightsTKO, claims and benefits shall be an asset of, and which obligations shall be a liability of, Sellers or an Affiliate of Sellers (for the avoidance of doubt, other than the Company or the Company Subsidiaries), as applicable; provided that in either case, neither Seller, the Buyer, the Company any Transferred Entity or their respective Affiliates shall be required to commence, defend or participate in any litigation or offer or pay any money or otherwise grant any accommodation (financial or otherwise) to any third partyPerson (an “Extraordinary Action”) to obtain any New Contract or Partial Assignment and Release with respect to any Shared Contract.
(b) If following the Closing, commence any Proceeding or offer or grant any other financial or other material non-financial accommodations in connection with such efforts. If the Sellers and Company or their respective Affiliates, as applicable, are third party under a Shared Contract does not able agree to enter into an arrangement a New Contract or Partial Assignment and Release consistent with Section 6.02(a), the parties shall for a period of up to dividetwo (2) years or until the earlier expiration or termination date of the applicable Shared Contract, partially assigncooperate with each other and, modify following good faith discussions between the parties, seek to obtain or replicate structure mutually acceptable alternative arrangements for the applicable member of the EDR Group and the applicable Transferred Entity (in whole or in partTKO or its Subsidiaries) the receiving rights and obligations under benefits, and in bearing liabilities and obligations, (i) with respect of any such Shared Contract prior to the Closing, the Closing shall, subject to the satisfaction (orEDR Group, to the extent permitted by applicable Law or the terms of this Agreement, the waiver by the parties entitled related to the benefit thereofExcluded EDR Businesses, Excluded Assets and Excluded Liabilities, and (ii) of with respect to the conditions set forth Transferred Entities (or TKO or its Subsidiaries), to the extent related to the Businesses (other than Excluded Liabilities), Transferred Assets and Transferred Liabilities (provided that such arrangements shall not result in Article VIII, nonetheless take place on the terms set forth herein and, thereafter and until the earlier of (x) the date that the term a breach or violation of such Shared Contract expires in accordance with its terms following by any of the parties thereto or a violation of applicable Law) (each, a “Back-to-Back Arrangement”).
(c) With respect to Liabilities, rights and benefits pursuant to, under or relating to a given Shared Contract, relating to occurrences from and after the Closing, to the extent a New Contract, a Partial Assignment and Release or a Back-to-Back Arrangement has not been entered into in respect to such Shared Contract, such Liabilities, rights and benefits shall, unless otherwise allocated pursuant to this Agreement or any other Ancillary Agreement or as otherwise mutually agreed between the EDR Parties and the TKO Parties, be allocated between the EDR Group and TKO as follows:
(yi) If a Liability is incurred, or if a right or benefit is obtained, exclusively in respect of the Businesses (other than Excluded Liabilities and Excluded Assets), Transferred Assets or Transferred Liabilities or exclusively in respect of the Excluded EDR Businesses, Excluded Assets or Excluded Liabilities, such Liability, right or benefit shall be allocated to TKO or its applicable Subsidiary (including the Transferred Entities) (in respect of the Business (other than Excluded Liabilities and Excluded Assets), Transferred Assets or Transferred Liabilities) or the EDR Group (in respect of the Excluded EDR Businesses), Excluded Assets or Excluded Liabilities, as applicable;
(ii) If a Liability, right or benefit cannot be so allocated under Section 6.02(c) above, such Liability, right or benefit shall be allocated to the EDR Group or TKO or one or more of their respective Subsidiaries, as the case may be, based on the relative proportions of total benefit received (over the term of the Shared Contract remaining as of the Closing Date, measured as of the date on which of the divisionallocation) by the Businesses (other than Excluded Liabilities and Excluded Assets), partial assignmentTransferred Assets or Transferred Liabilities or the Excluded EDR Businesses, modification Excluded Assets or replication Excluded Liabilities (as applicable) under the relevant Shared Contract. Notwithstanding the foregoing, each of such Shared Contract is effected as contemplated hereby and (z) twelve (12) months following the Closing, Sellers and their AffiliatesEDR Parties, on the one hand, and the Company and the Company SubsidiariesTKO, on the other hand, at the sole cost and expense of Sellers, reasonably cooperate and use their respective reasonable best efforts (including by entry into one or more commercial arrangements) so that (A) the Company and the Company Subsidiaries receive the interest in the rights, claims and benefits, and bear the responsibility for the obligations, in the Buyer Portion under and in respect of such Shared Contract and (B) Sellers or an Affiliate of the Sellers (for the avoidance of doubt, other than the Company or a Company Subsidiary) receives the interest in the rights, claims and benefits, and bear the responsibility for the obligations, in the Sellers Portion under and in respect of such Shared Contract. Notwithstanding anything to the contrary in this Agreement, (1) the Sellers or the Company, as applicable, shall be responsible for any or all Liabilities to the extent related to, resulting from, or arising from out of its (or its AffiliatesSubsidiaries’, including, with respect to TKO, the Transferred Entities) direct or indirect breach of any of, or actions under, the relevant Shared Contract following to which this Section 6.02 otherwise pertains.
(d) If the ClosingEDR Group, (2) Sellers shall be responsible for Sellers Portion of any Liabilities arising from on the one hand, or relating to any pre-Closing direct TKO or indirect breach of any Shared Contract and (C) from and after the Execution Date, except as required by applicable Law or with the prior written consent of Buyer (not to be unreasonably withheld, condition or delayed), Seller Parent shall not, and shall cause its Affiliates not to, amend or modify any Shared Contract in a manner that is adverse to Buyer, any of its Affiliates or Subsidiaries (including the Business in Transferred Entities), on the other hand, receives any material respect or terminate any Shared Contract (excluding, for the avoidance of doubt, any expiration or automatic extension or renewal of any such Shared Contract pursuant to its terms) or waive any material benefit or right payment which under any Shared Contract was intended for the other, the EDR Parties and TKO will use their respective reasonable best efforts to, and to cause their respective Subsidiaries to (including, with respect to TKO, the Transferred Entities), deliver such benefit or payment to the extent such Shared Contract (or any portion thereof) is related to the Business, in each case, in a manner that would have a disproportionate adverse effect on the Business as compared to Seller Parent’s or its Affiliates’ other businessesparty.
Appears in 1 contract
Sources: Transaction Agreement (Endeavor Group Holdings, Inc.)