Shared Contracts. (i) Buyer acknowledges that certain contracts, understandings or agreements to which Seller or one or more of its Subsidiaries is party contain terms that are relevant to, are for the benefit of and/or impose obligations on Seller and its Subsidiaries with respect to both the Business and one or more of Seller’s Other Businesses (such contracts, understandings and arrangements being collectively referred to herein as “Shared Contracts”). Buyer acknowledges and agrees that such Shared Contracts shall be addressed by the parties as set forth in this Section 8T. (ii) Section 8T(ii) of the Seller Disclosure Letter (as amended after the date hereof with the agreement of Buyer and Seller) sets forth certain material Shared Contracts under which, except as set forth in the Ancillary Agreements, Buyer, the members of the Paper Group (and their Subsidiaries) and the Business shall cease to have any rights or obligations from and after the Closing. Seller acknowledges and agrees that, from and after the Closing, it and its Subsidiaries shall be solely responsible for performance of the Shared Contracts set forth on Section 8T(ii) of the Seller Disclosure Letter and Buyer acknowledges and agrees that neither it nor any of its Affiliates (including any member of the Paper Group or any other Affiliate that owns assets of the Business) shall have any rights or obligations under any of the Shared Contracts except as set forth in the Ancillary Agreements. (iii) Section 8T(iii) of the Seller Disclosure Letter (as amended after the date hereof with the agreement of Buyer and Seller) sets forth certain material Shared Contracts under which both the Business and Seller’s Other Businesses perform obligations, have liabilities and/or receive benefits (the “Ongoing Shared Contracts”). With respect to each Ongoing Shared Contract, from and after the date hereof until expiration or termination of such Ongoing Shared Contract, each of Seller and Buyer shall, at the request of the other, cooperate with each other to schedule discussions and participate in negotiations with the counterparty to, or obligor or obligee under, each such Ongoing Shared Contract regarding a split of such Ongoing Shared Contract that, as nearly as practicable, approximates the rights and obligations of the Business and Seller’s Other Businesses with respect to such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to such split; provided that in no event shall either Seller or Buyer be obligated to execute, deliver or (except to the extent executed and delivered by such Person) perform under, or be obligated to cause another Person to execute, deliver or (except to the extent executed and delivered by such Person) perform under, such split contract without such party’s prior written consent. For the avoidance of doubt, in no event shall the split of, or any similar action with respect to, any Ongoing Shared Contract be a condition to the obligations of any party to this Agreement. (iv) To the extent that a split contract with respect to such Ongoing Shared Contract is not obtained prior to Closing, then from and after the Closing until such Ongoing Shared Contract expires or is terminated, to the extent permitted by law and, unless waived by Seller, to the extent otherwise permissible in light of the terms of such Ongoing Shared Contract, then Seller shall cause Seller’s Other Businesses and Buyer shall cause Buyer Sub, the members of the Paper Group, each of their respective Subsidiaries and the Business to perform obligations under each such Ongoing Shared Contract to which it is a party or bound and Seller and Buyer shall cooperate with each other and use reasonable best efforts such that the applicable members of the Paper Group and their Subsidiaries shall perform the obligations under, and receive the benefits of, such Ongoing Shared Contracts, in each case in the manner set forth on Section 8T(iv) of the Seller Disclosure Letter (as amended after the date hereof with the consent of Buyer and Seller) or otherwise in a manner that as nearly as practicable approximates the obligations and benefits of the Business and Seller’s Other Businesses with respect to such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to Closing. In the event that, after the Closing, Buyer performs its obligations under an Ongoing Shared Contract that has not been split and Seller or one of its Subsidiaries receives benefits under such Ongoing Shared Contract that are attributable to the operations of the Business after the Closing Date, Seller shall pay over such benefits to Buyer. In the event that, after the Closing, Seller performs its obligations under an Ongoing Shared Contract that has not been split and Buyer or one of its Subsidiaries receives benefits that are attributable to the operation of one of Seller’s Other Businesses after Closing, Buyer shall pay over such benefits to Seller. Each of Buyer and Seller shall indemnify the other for Losses such party or its Affiliates suffer as a result of any breach of any Ongoing Shared Contract by such party. (v) Buyer and Seller agree that, from and after the Closing, such party shall not, and shall cause its Affiliates not to, amend, waive, settle or compromise any material matter or claim related to any Ongoing Shared Contract without the prior written consent of the other. For all purposes of this Section 8T, upon an effective split of an Ongoing Shared Contract that each of Buyer and Seller has agreed to, such Ongoing Shared Contract shall be deemed terminated for purposes of this Section 8T.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Aldabra 2 Acquisition Corp.), Purchase and Sale Agreement (Boise Cascade Holdings, L.L.C.)
Shared Contracts. (ia) Buyer acknowledges that certain contracts, understandings or agreements to which Seller or one or more of its Subsidiaries is party contain terms that are relevant to, are for the benefit of and/or impose obligations on Seller and its Subsidiaries with With respect to both the Business and one or more a list of Seller’s Other Businesses (such contracts, understandings and arrangements being collectively referred to herein as “Shared Contracts”). Buyer acknowledges and agrees that such certain Shared Contracts shall to be addressed reasonably agreed upon by the parties as set forth in this Section 8T.
(ii) Section 8T(ii) of the Seller Disclosure Letter (as amended after ▇▇▇▇▇▇ and Buyer following the date hereof with and prior to the agreement of Buyer and Seller) sets forth certain Closing (each, a “Specified Shared Contract”), which shall include the material Shared Contracts under whichlisted Schedule 6.22(a), except as set forth in the Ancillary Agreements, Buyer, the members of the Paper Group (and their Subsidiaries) and the Business shall cease to have any rights or obligations from and after the Closing. Seller acknowledges and agrees that, from and after the Closing, it and its Subsidiaries shall be solely responsible for performance of the Shared Contracts set forth on Section 8T(ii) of the Seller Disclosure Letter and Buyer acknowledges and agrees that neither it nor any of its Affiliates (including any member of the Paper Group or any other Affiliate that owns assets of the Business) shall have any rights or obligations under any of the Shared Contracts except as set forth in the Ancillary Agreements.
(iii) Section 8T(iii) of the Seller Disclosure Letter (as amended after the date hereof with the agreement of Buyer and Seller) sets forth certain material Shared Contracts under which both the Business and Seller’s Other Businesses perform obligations, have liabilities and/or receive benefits (the “Ongoing Shared Contracts”). With respect to each Ongoing Shared Contract, from and after the date hereof until expiration or termination of such Ongoing Shared Contract, each of Seller and Buyer shall, at the request of the other, cooperate with each other to schedule discussions and participate in negotiations with the counterparty to, or obligor or obligee under, each such Ongoing Shared Contract regarding a split of such Ongoing Shared Contract that, as nearly as practicable, approximates the rights and obligations of the Business and Seller’s Other Businesses with respect to such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to such split; provided that in no event shall either Seller or Buyer be obligated to execute, deliver or (except to the extent executed and delivered by such Person) perform under, or be obligated to cause another Person to execute, deliver or (except to the extent executed and delivered by such Person) perform under, such split contract without such party’s prior written consent. For the avoidance of doubt, in no event shall the split of, or any similar action with respect to, any Ongoing Shared Contract be a condition to the obligations of any party to this Agreement.
(iv) To the extent that a split contract with respect to such Ongoing Shared Contract is not obtained prior to Closing, then from and after the Closing until such Ongoing Shared Contract expires or is terminated, to the extent permitted by law and, unless waived by Seller, to the extent otherwise permissible in light of the terms of such Ongoing Shared Contract, then Seller shall cause Seller’s Other Businesses and Buyer shall cause Buyer Sub, the members of the Paper Group, each of their respective Subsidiaries and the Business to perform obligations under each such Ongoing Shared Contract to which it is a party or bound and Seller Parent and Buyer shall cooperate with each other and use their commercially reasonable best efforts prior to the Closing (i) to divide, modify or replicate (in whole or in part, on reasonable market-standard terms proposed by the counterparty of such that Shared Contract, taking into account differences between the applicable members Business and the Excluded Businesses following the Closing) the respective rights, obligations and liabilities relating to the Business under and in respect of such Specified Shared Contract, or (ii) to the extent the action contemplated in the foregoing clause (i) is not possible, novate the respective rights, obligations and liabilities relating to the Business under and in respect of such Specified Shared Contract, such that, effective as of the Paper Group Closing, (A) Buyer or its designated Affiliate is the beneficiary of the post-Closing rights, and their Subsidiaries is responsible for the post-Closing obligations and liabilities, related to that portion of such Specified Shared Contract related to the operation or conduct of the Business (the “Business Portion”) (so that, subsequent to the Closing, Parent and its controlled Affiliates (other than the Companies) shall perform have no post-Closing rights or post-Closing obligations and liabilities with respect to the Business Portion of such Specified Shared Contract) and (B) Parent and its controlled Affiliates (other than the Companies) is the beneficiary of the rights and is responsible for the obligations underand liabilities related to such Specified Shared Contract other than the Business Portion (the “Non-Business Portion”) (so that, subsequent to the Closing, Buyer and receive its Affiliates shall have no rights, obligations or liabilities with respect to the benefits ofNon-Business Portion of such Specified Shared Contract).
(b) If the Closing occurs before all Specified Shared Contracts are assigned or otherwise divided, such Ongoing Shared Contractsmodified or replicated pursuant to Section 6.22(a), Parent and Buyer shall use commercially reasonable efforts and cooperate with each other in each case in the manner set forth on Section 8T(iv) any mutually agreeable and lawful arrangement under which Parent or one of its controlled Affiliates will provide Buyer or its designated Affiliate all of the Seller Disclosure Letter (as amended after the date hereof with the consent of Buyer and Seller) or otherwise in a manner that as nearly as practicable approximates the obligations economic claims, rights and benefits of the Business Portion of such Specified Shared Contract (on reasonable market-standard terms proposed by the counterparty of such Shared Contract, taking into account differences between the Business and Sellerthe Excluded Businesses following the Closing) until the earliest of (i) the expiration of the then-current term of the applicable Specified Shared Contract, (ii) the termination of such Specified Shared Contract upon mutual agreement by the parties thereto, subject to Buyer’s Other Businesses consent (not to be unreasonably withheld, conditioned or delayed), and (iii) one (1) year following the Closing.
(c) Notwithstanding anything to the contrary contained in this Agreement but subject to Section 6.19, neither Parent nor any of its Affiliates shall (i) be required to expend any money, commence or participate in any Action, incur liabilities or offer or grant any accommodation (financial or otherwise) to any third party to obtain any consent described in this Section 6.22. or (ii) have any obligation pursuant to this Section 6.22 with respect to such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to Closing. In the event that, after the Closing, Buyer performs its obligations under an Ongoing Shared any Contract that has not been split and Seller or one of its Subsidiaries receives benefits under such Ongoing Shared Contract that are attributable is governed by the Transition Services Agreement. Any incremental costs to the operations of the Business after the Closing Date, Seller obtain any consent described in this Section 6.22 shall pay over such benefits to Buyer. In the event that, after the Closing, Seller performs its obligations under an Ongoing Shared Contract that has not been split and Buyer or one of its Subsidiaries receives benefits that are attributable to the operation of one of Seller’s Other Businesses after Closing, Buyer shall pay over such benefits to Seller. Each of Buyer and Seller shall indemnify the other for Losses such party or its Affiliates suffer as a result of any breach of any Ongoing Shared Contract be borne by such party▇▇▇▇▇.
(vd) Buyer and Seller agree that, from From and after the Closing, such party (i) Buyer shall not, indemnify and shall cause hold harmless Parent and its Affiliates from and against all Losses resulting from Third-Party Claims against Parent and its Affiliates to the extent arising from or relating to the Business Portion of any Specified Shared Contract, (ii) Parent shall indemnify and hold harmless Buyer and the Companies from and against all Losses resulting from Third-Party Claims against Buyer and its Affiliates to the extent arising from or relating to the Non-Business Portion of any Specified Shared Contract, (iii) Buyer and the Companies shall not to, amend, waive, settle extend the term or compromise otherwise amend the terms of any Shared Contract in a manner that would adversely affect Parent or any of its Affiliates in any material matter or claim related to any Ongoing Shared Contract respect without the Parent’s prior written consent (not to be unreasonably withheld, conditioned or delayed) and (iv) Parent and its Affiliates shall not extend the term or otherwise amend the terms of the other. For all purposes of this Section 8T, upon an effective split of an Ongoing any Shared Contract in a manner that each of would adversely affect Buyer or the Companies in any material respect without Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed); provided, that clauses (i) and Seller has agreed to, (ii) shall not apply if indemnities relating to the Parties’ obligations with respect to Specified Shared Contracts are included in another agreement between the Parties with respect thereto (and the Parties acknowledge that the Transition Services Agreement includes such Ongoing Shared Contract shall be deemed terminated for purposes of this Section 8T.indemnities).
Appears in 1 contract
Sources: Purchase Agreement (NCR Voyix Corp)
Shared Contracts. (a) With respect to any Shared Contracts listed on Schedule 6.3(a) of the Disclosure Schedule (each, a “Specified Shared Contract”), prior to the Closing, Sellers, on the one hand, and Buyer, on the other hand shall cooperate with each other and use their commercially reasonable efforts (i) to divide, modify or replicate (in whole or in part) the respective rights, obligations and liabilities relating to the Business under and in respect of such Specified Shared Contract, or (ii) to the extent the action contemplated in the foregoing clause (i) is not possible, novate the respective rights, obligations and liabilities relating to the Business under and in respect of such Specified Shared Contract (provided that this clause (ii) shall not apply to the extent such novation is not permissible under the relevant governing law of the applicable Contract or under other applicable Law), such that, effective as of the Closing, (A) Buyer acknowledges or its designated Affiliate is the beneficiary of the post-Closing rights, and is responsible for the post-Closing obligations and liabilities, related to that certain contractsportion of such Specified Shared Contract related solely to the operation or conduct of the Business (the “Business Portion”) (so that, understandings or agreements subsequent to which the Closing, Sellers and their Affiliates (other than the Company) shall have no post-Closing rights and no post-Closing obligations and liabilities with respect to the Business Portion of such Specified Shared Contract) and (B) a Seller or one or more of its Subsidiaries Affiliates (other than the Company) is party contain terms that are relevant to, are the beneficiary of the rights and is responsible for the benefit of and/or impose obligations on Seller and liabilities related to such Specified Shared Contract other than the Business Portion (the “Non-Business Portion”) (so that, subsequent to the Closing, Buyer and its Subsidiaries Affiliates shall have no rights, obligations or liabilities with respect to both the Non-Business Portion of such Specified Shared Contract). Any novation of any Specified Shared Contract shall be effectuated pursuant to a novation agreement, which shall be substantially in the form and substance attached hereto as Exhibit F (the “Form Novation Agreement”).
(b) If the Closing occurs before all Specified Shared Contracts are assigned or otherwise divided, modified or replicated pursuant to Section 6.3(a), Sellers and Buyer shall use commercially reasonable efforts and cooperate with each other in any mutually agreeable and lawful arrangement under which a Seller or one of its Controlled Affiliates will provide Buyer or its designated Affiliate the economic rights and benefits of the Business Portion of such Specified Shared Contract until the earliest of (i) the expiration of the then-current term, (ii) six (6) months following the Closing Date and one (iii) the termination of or more amendment to such Specified Shared Contract upon mutual agreement by the parties; provided that any early termination fees or similar fees incurred by any Seller or any of its Controlled Affiliates in connection with the termination or amendment of such Specified Shared Contract pursuant to this clause (iii) shall be borne by Buyer. Such arrangement may include subcontracting, sublicensing or subleasing to Buyer or its designated Affiliate of any and all rights of any Seller or any Seller’s Other Businesses applicable Controlled Affiliate under the Business Portion of such Specified Shared Contract to the extent not prohibited under such Specified Shared Contract.
(such contractsc) Notwithstanding anything to the contrary contained in this Agreement, understandings neither any Seller nor any of its Affiliates shall (i) be required to expend any money, (ii) commence or participate in any claim or Proceeding, (iii) incur liabilities or (iv) agree or consent to do any of the foregoing, in each case, in order to obtain any consent, assumption or release. Notwithstanding anything to the contrary herein, neither any Seller nor any of its Affiliates represents or warrants that any agreement to replace or otherwise split any Specified Shared Contract is obtainable from any third party, and arrangements being collectively referred to herein as “Shared Contracts”). Buyer acknowledges and agrees that such Shared Contracts for the avoidance of doubt, no representation, warranty or covenant of any Seller or the Company contained in this Agreement or the other Transaction Documents shall be addressed by breached or deemed breached, and no Closing Condition shall be deemed not satisfied, based on (A) the parties as set forth failure to obtain any Consent described in this Section 8T.6.3 or (B) any claim or Proceeding commenced or threatened by or on behalf of any Person arising out of, relating to or resulting from (1) the failure to obtain any Consent described in this Section 6.3 or (2) any arrangement between any Seller or Buyer entered into pursuant to Section 6.3(b).
(iid) Section 8T(ii) of the Seller Disclosure Letter (as amended after the date hereof with the agreement of Buyer and Seller) sets forth certain material Shared Contracts under which, except as set forth in the Ancillary Agreements, Buyer, the members of the Paper Group (and their Subsidiaries) and the Business shall cease to have any rights or obligations from and after the Closing. Seller acknowledges and agrees that, from From and after the Closing, it (i) Buyer shall indemnify and hold harmless each Seller and its Subsidiaries shall be solely responsible for performance Affiliates from and against all Losses arising from or relating to the Business Portion of the any Specified Shared Contracts set forth on Section 8T(iiContract and (ii) of the Seller Disclosure Letter and Buyer acknowledges and agrees that neither it nor any of its Affiliates (including any member of the Paper Group or any other Affiliate that owns assets of the Business) shall have any rights or obligations under any of the Shared Contracts except as set forth in the Ancillary Agreements.
(iii) Section 8T(iii) of the Seller Disclosure Letter (as amended after the date hereof with the agreement of Buyer and Seller) sets forth certain material Shared Contracts under which both the Business and Seller’s Other Businesses perform obligations, have liabilities and/or receive benefits (the “Ongoing Shared Contracts”). With respect to each Ongoing Shared Contract, from and after the date hereof until expiration or termination of such Ongoing Shared Contract, each of Seller and Buyer shall, at the request of the other, cooperate with each other to schedule discussions and participate in negotiations with the counterparty to, or obligor or obligee under, each such Ongoing Shared Contract regarding a split of such Ongoing Shared Contract that, as nearly as practicable, approximates the rights and obligations of the Business and Seller’s Other Businesses with respect to such Ongoing Shared Contract during Company shall not extend the term of the Ongoing Shared Contract prior to such split; provided that in no event shall either Seller or Buyer be obligated to execute, deliver or (except to the extent executed and delivered by such Person) perform under, or be obligated to cause another Person to execute, deliver or (except to the extent executed and delivered by such Person) perform under, such split contract without such party’s prior written consent. For the avoidance of doubt, in no event shall the split of, or any similar action with respect to, any Ongoing Shared Contract be a condition to the obligations of any party to this Agreement.
(iv) To the extent that a split contract with respect to such Ongoing Shared Contract is not obtained prior to Closing, then from and after the Closing until such Ongoing Shared Contract expires or is terminated, to the extent permitted by law and, unless waived by Seller, to the extent otherwise permissible in light of amend the terms of such Ongoing Shared Contract, then Seller shall cause Seller’s Other Businesses and Buyer shall cause Buyer Sub, the members of the Paper Group, each of their respective Subsidiaries and the Business to perform obligations under each such Ongoing any Shared Contract to which it is a party or bound and Seller and Buyer shall cooperate with each other and use reasonable best efforts such that the applicable members of the Paper Group and their Subsidiaries shall perform the obligations under, and receive the benefits of, such Ongoing Shared Contracts, in each case in the manner set forth on Section 8T(iv) of the Seller Disclosure Letter (as amended after the date hereof with the consent of Buyer and Seller) or otherwise in a manner that as nearly as practicable approximates the obligations and benefits would adversely affect any Seller or any of the Business and such Seller’s Other Businesses with respect to such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to Closing. In the event that, after the Closing, Buyer performs its obligations under an Ongoing Shared Contract that has not been split and Seller or one of its Subsidiaries receives benefits under such Ongoing Shared Contract that are attributable to the operations of the Business after the Closing Date, Seller shall pay over such benefits to Buyer. In the event that, after the Closing, Seller performs its obligations under an Ongoing Shared Contract that has not been split and Buyer or one of its Subsidiaries receives benefits that are attributable to the operation of one of Seller’s Other Businesses after Closing, Buyer shall pay over such benefits to Seller. Each of Buyer and Seller shall indemnify the other for Losses such party or its Affiliates suffer as a result of any breach of any Ongoing Shared Contract by such party.
(v) Buyer and Seller agree that, from and after the Closing, such party shall not, and shall cause its Affiliates not to, amend, waive, settle or compromise any material matter or claim related to any Ongoing Shared Contract without the Sellers’ prior written consent of the other. For all purposes of this Section 8T, upon an effective split of an Ongoing Shared Contract that each of Buyer and Seller has agreed to, such Ongoing Shared Contract shall be deemed terminated for purposes of this Section 8T.consent.
Appears in 1 contract
Sources: Share Purchase Agreement (Spirit AeroSystems Holdings, Inc.)
Shared Contracts. (ia) Buyer acknowledges that certain contracts, understandings or agreements With respect to which Seller or one or more of its Subsidiaries is party contain terms that are relevant Shared Contractual Liabilities pursuant to, are for under or relating to a given Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or any Ancillary Agreement, be allocated between VPI or any of the benefit of and/or impose obligations Retained Subsidiaries (as specified by VPI), on Seller the one hand, and Buyer and its Subsidiaries with respect to both Subsidiaries, on the Business and one or more other hand, based on the relative proportions of Seller’s Other Businesses total benefit received (such contracts, understandings and arrangements being collectively referred to herein as “Shared Contracts”). Buyer acknowledges and agrees that such Shared Contracts shall be addressed by over the parties as set forth in this Section 8T.
(ii) Section 8T(ii) of the Seller Disclosure Letter (as amended after the date hereof with the agreement of Buyer and Seller) sets forth certain material Shared Contracts under which, except as set forth in the Ancillary Agreements, Buyer, the members of the Paper Group (and their Subsidiaries) and the Business shall cease to have any rights or obligations from and after the Closing. Seller acknowledges and agrees that, from and after the Closing, it and its Subsidiaries shall be solely responsible for performance entire term of the Shared Contracts set forth Contract) by VPI and the Retained Subsidiaries, on Section 8T(iithe one hand, or Buyer and its Subsidiaries, on the other hand, under the relevant Shared Contract. Notwithstanding the foregoing, each of VPI and Buyer shall be responsible for any or all Liabilities arising out of or resulting from its (or its respective Subsidiaries') breach of the Seller Disclosure Letter and relevant Shared Contract to which this Section 7.12 otherwise pertains.
(b) If VPI or any Retained Subsidiary, on the one hand, or Buyer acknowledges and agrees that neither it nor or any of its Affiliates (including Subsidiaries, on the other hand, receives any member of the Paper Group benefit or any other Affiliate that owns assets of the Business) shall have any rights or obligations payment under any of Shared Contract which was intended for the Shared Contracts except as set forth in other party, VPI and Buyer will use their respective reasonable endeavors to, and to cause their respective Subsidiaries to, deliver, transfer or otherwise afford such benefit or payment to the Ancillary Agreementsother party.
(iiic) Section 8T(iii) of the Seller Disclosure Letter (as amended after the date hereof with the agreement of Buyer and Seller) sets forth Post Closing, certain material Shared Contracts under used in the WEEMEA Business, which both are identified in the Business and Seller’s Other Businesses perform obligations's Disclosure Letter, have liabilities and/or receive benefits (the “Ongoing Shared Contracts”). With respect to each Ongoing Shared Contract, from and after the date hereof until expiration or termination of such Ongoing Shared Contract, each of Seller and Buyer shall, at the request of the other, cooperate with each other to schedule discussions and participate in negotiations with the counterparty to, or obligor or obligee under, each such Ongoing Shared Contract regarding a split of such Ongoing Shared Contract that, as nearly as practicable, approximates the rights and obligations of the Business and Seller’s Other Businesses with respect to such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to such split; provided that in no event shall either Seller or Buyer be obligated to execute, deliver or (except to the extent executed and delivered sub-licensed by such Person) perform under, or be obligated to cause another Person to execute, deliver or (except to the extent executed and delivered by such Person) perform under, such split contract without such party’s prior written consent. For the avoidance of doubt, in no event shall the split of, VPI or any similar action with respect to, any Ongoing Shared Contract be a condition to the obligations of any party to this Agreement.
(iv) To the extent that a split contract with respect to such Ongoing Shared Contract is not obtained prior to Closing, then from and after the Closing until such Ongoing Shared Contract expires or is terminatedits Subsidiaries, to the extent permitted by law and, unless waived by Sellerpermitted, to the extent otherwise permissible relevant WEEMEA Company or Subsidiary of WEEMEA Company, as determined by VPI in light of the terms of such Ongoing Shared Contract, then Seller shall cause Seller’s Other Businesses and Buyer shall cause Buyer Sub, the members of the Paper Group, each of their respective Subsidiaries and the Business to perform obligations under each such Ongoing Shared Contract to which it is a party or bound and Seller and Buyer shall cooperate with each other and use reasonable best efforts such that the applicable members of the Paper Group and their Subsidiaries shall perform the obligations under, and receive the benefits of, such Ongoing Shared Contracts, in each case in the manner set forth on Section 8T(iv) of the Seller Disclosure Letter (as amended after the date hereof with the consent of Buyer and Seller) or otherwise in a manner that as nearly as practicable approximates the obligations and benefits of the Business and Seller’s Other Businesses with respect to such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to Closing. In the event that, after the Closing, Buyer performs its obligations under an Ongoing Shared Contract that has not been split and Seller or one of its Subsidiaries receives benefits under such Ongoing Shared Contract that are attributable to the operations of the Business after the Closing Date, Seller shall pay over such benefits to Buyer. In the event that, after the Closing, Seller performs its obligations under an Ongoing Shared Contract that has not been split and Buyer or one of its Subsidiaries receives benefits that are attributable to the operation of one of Seller’s Other Businesses after Closing, Buyer shall pay over such benefits to Seller. Each of Buyer and Seller shall indemnify the other for Losses such party or its Affiliates suffer as a result of any breach of any Ongoing Shared Contract by such partysole discretion.
(vd) Buyer and Seller agree that, from and after the Closing, such party shall not, and shall cause its Affiliates not to, amend, waive, settle or compromise any material matter or claim related to any Ongoing Shared Contract without the prior written consent of the other. For all purposes of As used in this Section 8T7.12, upon an effective split of an Ongoing Shared Contract that each of Buyer and Seller has agreed to, such Ongoing Shared Contract Buyer's Subsidiaries shall be deemed terminated for purposes of this Section 8T.include the WEEMEA Companies.
Appears in 1 contract
Sources: Acquisition Agreement (Valeant Pharmaceuticals International)
Shared Contracts. Seller, on the one hand, and Buyer, on the other hand, shall, and shall cause their respective Subsidiaries to, cooperate with each other and shall use their commercially reasonable efforts to (i) Buyer acknowledges that certain contracts, understandings or agreements draft and agree to which Seller or one or more a final form of its Subsidiaries is party contain terms that are relevant to, are for the benefit each of and/or impose obligations on Seller Schedule 5.05(a) and its Subsidiaries with respect to both the Business and one or more of Seller’s Other Businesses (such contracts, understandings and arrangements being collectively referred to herein Schedule 5.05(b) as “Shared Contracts”). Buyer acknowledges and agrees that such Shared Contracts shall be addressed by the parties promptly as set forth in this Section 8T.
(ii) Section 8T(ii) of the Seller Disclosure Letter (as amended reasonably practicable after the date hereof with and (ii) cause the agreement of Buyer and Seller) sets forth certain material Shared Contracts under which, except as set forth in Schedule 5.05(a) (to the Ancillary Agreements, Buyer, extent such Shared Contracts do not constitute Transferred Assets) (the members of the Paper Group (and their Subsidiaries“Buyer Designated Shared Contracts”) and the Business shall cease Shared Contracts set forth in Schedule 5.05(b) (to have any rights the extent such Shared Contracts do not constitute Retained Assets) (the “Seller Designated Shared Contracts” and, together with the Buyer Designated Shared Contracts, the “Designated Shared Contracts”) to be either, at the option of the Affiliate of Buyer or obligations from and after Seller that is party to such Designated Shared Contract, (x) replaced with separate contracts (the Closing. Seller acknowledges and agrees “Replacement Contracts”) or (y) addressed by services rendered under the Transition Services Agreement (the “Replacement Services”), in either case, that provide that, from and after the Closing, it Buyer or one or more Group Companies designated by Buyer, in the case of the Buyer Designated Shared Contracts, or any Retained Company designated by Seller, in the case of the Seller Designated Shared Contracts, receives contract rights and obligations under the Replacement Contracts or Replacement Services, as applicable, that are substantially similar, to those contract rights and obligations under the Designated Shared Contracts utilized by Seller or any of its Subsidiaries in the conduct of the Business or the Retained Businesses, as applicable, as of immediately prior to the Closing. Buyer shall be solely responsible for performance of the Shared Contracts set forth on Section 8T(ii) of the Seller Disclosure Letter any additional costs or fees arising from and under a Replacement Contract or Replacement Service for a Buyer acknowledges and agrees that neither it nor any of its Affiliates (including any member of the Paper Group or any other Affiliate that owns assets of the Business) shall have any rights or obligations under any of the Shared Contracts except as set forth in the Ancillary Agreements.
(iii) Section 8T(iii) of the Seller Disclosure Letter (as amended after the date hereof with the agreement of Buyer and Seller) sets forth certain material Shared Contracts under which both the Business and Seller’s Other Businesses perform obligations, have liabilities and/or receive benefits (the “Ongoing Shared Contracts”). With respect to each Ongoing Designated Shared Contract, or in connection with any arrangement with respect thereto described in this Section 5.05, and Seller shall be solely responsible for any additional costs or fees arising from and after the date hereof until expiration under a Replacement Contract or termination of such Ongoing Replacement Service for a Seller Designated Shared Contract, each of Seller and Buyer shall, at the request of the other, cooperate or in connection with each other to schedule discussions and participate in negotiations with the counterparty to, or obligor or obligee under, each such Ongoing Shared Contract regarding a split of such Ongoing Shared Contract that, as nearly as practicable, approximates the rights and obligations of the Business and Seller’s Other Businesses any arrangement with respect to such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to such split; provided that thereto described in no event shall either Seller or Buyer be obligated to execute, deliver or (except to the extent executed and delivered by such Person) perform under, or be obligated to cause another Person to execute, deliver or (except to the extent executed and delivered by such Person) perform under, such split contract without such party’s prior written consentthis Section 5.05. For the avoidance of doubt, in no event shall the split of, or any similar action with respect to, any Ongoing Shared Contract be a condition notwithstanding anything to the obligations of any party to this Agreement.
(iv) To the extent that a split contract contrary herein, neither Seller, with respect to a Replacement Contract or Replacement Service for a Buyer Designated Shared Contract, or in connection with any arrangement with respect thereto described in this Section 5.05, nor Buyer, with respect to a Replacement Contract or Replacement Service for a Seller Designated Shared Contract, or in connection with any arrangement with respect thereto described in this Section 5.05, shall be responsible for any Liabilities resulting from such Ongoing Replacement Contracts or Replacement Services, including any increases in pricing or other costs arising as a result of the transactions contemplated by this Agreement. Buyer and Seller shall cooperate and provide each other with reasonable assistance in effecting such separation of the Designated Shared Contracts or replication of services thereunder as Replacement Services prior to the Closing and for a period of one hundred and eighty (180) days following the Closing Date. If Buyer and Seller are not able to effect the separation or replication of a Designated Shared Contract prior to the Closing, then after the Closing, until any such Designated Shared Contract is not obtained prior separated pursuant to Closing, then from and after the Closing until such Ongoing Shared a Replacement Contract expires or is terminatedreplicated as a Replacement Service, to the extent permitted by law and, unless waived by Seller, to the extent otherwise permissible in light of under applicable Law and under the terms of such Ongoing Designated Shared Contract, then Seller shall cause Seller’s Other Businesses and Buyer shall cause Buyer Sub, the members of the Paper Group, each of their respective Subsidiaries and the Business to perform obligations under each such Ongoing Shared Contract to which it is a party or bound and Seller and Buyer shall cooperate with each other and use reasonable best efforts such that the applicable members of the Paper Group and their Subsidiaries shall perform the obligations under, and receive the benefits of, such Ongoing Shared Contracts, in each case in the manner set forth on Section 8T(iv) of the Seller Disclosure Letter (as amended after the date hereof with the consent of Buyer and Seller) or otherwise in a manner that as nearly as practicable approximates the obligations and benefits of the Business and Seller’s Other Businesses with respect to such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to Closing. In the event that, after the Closing, Buyer performs its obligations under an Ongoing Shared Contract that has not been split and Seller or one of its Subsidiaries receives benefits under such Ongoing Shared Contract that are attributable to the operations of the Business after the Closing Date, Seller shall pay over such benefits to Buyer. In the event that, after the Closing, Seller performs its obligations under an Ongoing Shared Contract that has not been split and Buyer or one of its Subsidiaries receives benefits that are attributable to the operation of one of Seller’s Other Businesses after Closing, Buyer shall pay over such benefits to Seller. Each of Buyer and Seller shall indemnify (and shall cause their respective Subsidiaries (including, in the case of Buyer, the Group Companies) to) (i) assume and perform the Liabilities under such Designated Shared Contract relating to its business or the businesses of its Subsidiaries (and shall promptly reimburse the other Party for Losses such party any expenses relating thereto incurred by the other Party or its Affiliates suffer as a result Subsidiaries), allocated in accordance with this Section 5.05, (ii) hold in trust for the benefit of the other Party, and shall promptly forward to the other Party, any breach of any Ongoing monies or other benefits received pursuant to such Designated Shared Contract by relating to the business of the other Party (or the business of its Subsidiaries) and (iii) use commercially reasonable efforts to institute alternative arrangements intended to put the Parties in a substantially similar economic position as if such party.
(v) Buyer and Seller agree Designated Shared Contract was separated or its services replicated as Replacement Services as described above; provided that, from notwithstanding the foregoing, for a period of one hundred and after eighty (180) days following the Closing, such party (x) no Party shall not, and shall cause its Affiliates not to, amend, waive, settle or compromise fail to renew any material matter or claim related to any Ongoing Designated Shared Contract upon the expiration or termination thereof and (y) to the extent any such Designated Shared Contract contains an “evergreen” provision that automatically renews such Designated Shared Contract unless terminated or cancelled by either party thereto, the applicable Party shall not terminate or cancel such Designated Shared Contract as permitted pursuant to the terms thereof, in each case, without the prior written consent of Buyer or Seller, as applicable. Buyer shall be solely responsible for replacing any Buyer Designated Shared Contracts, as well as any other Shared Contracts that are not Transferred Assets or that are Retained Assets, to the otherextent such Shared Contracts are not separated or services replicated as described above prior to the Closing. For Seller shall be solely responsible for replacing any Seller Designated Shared Contracts, as well as any other Shared Contracts that are Transferred Assets or that are not Retained Assets, to the extent such Shared Contracts are not separated or services replicated as described above prior to the Closing. With respect to Liabilities under or resulting from a given Designated Shared Contract, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract or Replacement Service, be allocated from time to time between the Retained Companies, on the one hand, and Buyer and the Group Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term of such Designated Shared Contract, measured up to the date of the allocation, without duplication) by the Retained Companies, on the one hand, or Buyer and the Group Companies, on the other hand, under such Designated Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible for any and all Liabilities to the extent arising out of or relating to such Party’s (or its Subsidiaries’) breach of such Designated Shared Contract. It is acknowledged that for the purposes of this Section 8T5.05, upon an effective split of an Ongoing Shared Contract that each of Buyer and Seller has agreed to, such Ongoing Shared Contract what constitutes “substantially similar” shall be deemed terminated for purposes determined after taking into account changes in volume and similar pricing metrics, as well as the needs of this Section 8T.the applicable Party. Third Party Approvals .
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Shared Contracts. (ia) Buyer acknowledges that certain contracts, understandings or agreements to which Seller or one or more of its Subsidiaries is party contain terms that are relevant to, are for the benefit of and/or impose obligations on Seller and its Subsidiaries with respect to both the Business and one or more of Seller’s Other Businesses (such contracts, understandings and arrangements being collectively referred to herein as “Shared Contracts”). Buyer acknowledges and agrees that such Shared Contracts shall be addressed by the parties as set forth in this Section 8T.
(ii) Section 8T(ii) of the Seller Disclosure Letter (as amended after the date hereof with the agreement of Buyer and Seller) sets forth certain material Shared Contracts under which, except as set forth in the Ancillary Agreements, Buyer, the members of the Paper Group (and their Subsidiaries) and the Business shall cease to have any rights or obligations from and after the Closing. Seller acknowledges and agrees that, from and after the Closing, it and its Subsidiaries shall be solely responsible for performance of the Shared Contracts set forth on Section 8T(ii) of the Seller Disclosure Letter and Buyer acknowledges and agrees that neither it nor any of its Affiliates (including any member of the Paper Group or any other Affiliate that owns assets of the Business) shall have any rights or obligations under any of the Shared Contracts except as set forth in the Ancillary Agreements.
(iii) Section 8T(iii) of the Seller Disclosure Letter (as amended after the date hereof with the agreement of Buyer and Seller) sets forth certain material Shared Contracts under which both the Business and Seller’s Other Businesses perform obligations, have liabilities and/or receive benefits (the “Ongoing Shared Contracts”). With respect to each Ongoing Shared Contract, from and after From the date hereof until expiration the date that is twelve (12) months following the Closing Date, Seller and Purchaser shall, and shall cause their respective Affiliates to, use their commercially reasonable efforts to work together (and, if necessary and desirable, to work with the third party to any Shared Contract) to divide, partially assign, modify or termination replicate (in whole or in part) the respective rights and obligations under and in respect of such Ongoing any Shared Contract, each such that, following the Closing, (i) Purchaser, an Affiliate of Purchaser or the Transferred Company is the beneficiary of the rights and is responsible for the obligations related to the portion of such Shared Contract related to the Business (the “Purchaser Portion”), which rights shall be an asset of and which obligations shall be a liability of Purchaser, an Affiliate of Purchaser or the Transferred Company, and (ii) Seller or an Affiliate of Seller and Buyer shall, at (other than the request Transferred Company) is the beneficiary of the other, cooperate with each other rights and is responsible for the obligations related to schedule discussions and participate in negotiations with the counterparty to, or obligor or obligee under, each such Ongoing Shared Contract regarding relating to the Seller Business (the “Seller Portion”), which rights shall be an asset of and which obligations shall be a split liability of such Ongoing Seller or an Affiliate of Seller (other than the Transferred Company). Nothing in this Agreement shall require the division, partial assignment, modification or replication of a Shared Contract thatunless and until any necessary Consents are obtained or made, as nearly applicable. If Seller and Purchaser or their respective Affiliates, as practicableapplicable, approximates 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 the Business and Seller’s Other Businesses with respect to any such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to such split; provided that in no event shall either Seller or Buyer be obligated to executethe Closing, deliver or (except the Closing shall, subject to the extent executed and delivered by such Person) perform under, or be obligated to cause another Person to execute, deliver or satisfaction (except to the extent executed and delivered by such Person) perform under, such split contract without such party’s prior written consent. For the avoidance of doubt, in no event shall the split of, or any similar action with respect to, any Ongoing Shared Contract be a condition to the obligations of any party to this Agreement.
(iv) To the extent that a split contract with respect to such Ongoing Shared Contract is not obtained prior to Closing, then from and after the Closing until such Ongoing Shared Contract expires or is terminatedor, to the extent permitted by law andapplicable Law, unless waived the waiver by Seller, the parties entitled to the extent otherwise permissible in light of the terms of such Ongoing Shared Contract, then Seller shall cause Seller’s Other Businesses and Buyer shall cause Buyer Sub, the members of the Paper Group, each of their respective Subsidiaries and the Business to perform obligations under each such Ongoing Shared Contract to which it is a party or bound and Seller and Buyer shall cooperate with each other and use reasonable best efforts such that the applicable members of the Paper Group and their Subsidiaries shall perform the obligations under, and receive the benefits of, such Ongoing Shared Contracts, in each case in the manner set forth on Section 8T(ivbenefit thereof) of the Seller Disclosure Letter conditions set forth in Article VI (as amended after other than those conditions which by their terms are to be satisfied at the Closing but subject to the satisfaction at the Closing or waiver of such conditions), nonetheless take place on the terms set forth herein and, thereafter and until the earlier of (x) the date hereof with that is twelve (12) months following the consent Closing Date and (y) the date on which the division, partial assignment, modification or replication of Buyer and Seller) or otherwise in a manner that as nearly as practicable approximates the obligations and benefits of the Business and Seller’s Other Businesses with respect to such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to Closing. In the event that, after the Closing, Buyer performs its obligations under an Ongoing Shared Contract that has not been split and Seller or one of its Subsidiaries receives benefits under such Ongoing Shared Contract that are attributable to the operations of the Business after the Closing Dateis effected, Seller shall pay over such benefits to Buyer. In the event that, after the Closing, Seller performs its obligations under an Ongoing Shared Contract that has not been split and Buyer or one of its Subsidiaries receives benefits that are attributable to the operation of one of Seller’s Other Businesses after Closing, Buyer shall pay over such benefits to Seller. Each of Buyer and Seller shall indemnify the other for Losses such party or its Affiliates suffer as a result of any breach of any Ongoing Shared Contract by such party.
(v) Buyer and Seller agree that, from and after the Closing, such party shall notPurchaser shall, and shall cause its their respective Affiliates not to, amendcooperate in any commercially reasonable arrangement to provide that (1) Purchaser, waive, settle an Affiliate of Purchaser or compromise any material matter or claim related to any Ongoing the Transferred Company shall receive the interest in the benefits and obligations of the Purchaser Portion under and in respect of such Shared Contract without and (2) Seller or an Affiliate of Seller (other than the prior written consent Transferred Company) shall receive the interest in the benefits and obligations of the other. For all purposes Seller Portion under and in respect of this Section 8T, upon an effective split of an Ongoing such Shared Contract that each of Buyer and Seller has agreed to, such Ongoing Shared Contract shall be deemed terminated for purposes of this Section 8T.Contract.
Appears in 1 contract
Sources: Equity and Asset Purchase Agreement (Martin Marietta Materials Inc)
Shared Contracts. (a) Shared Contractual Liabilities pursuant to, under or directly relating to Shared Contracts shall, unless otherwise allocated pursuant to Section 5.16(a) of the Seller's Disclosure Schedule, this Agreement, a Local Asset Transfer Agreement, a Local Purchase Agreement or a Related Agreement, be allocated between DuPont and Buyer as follows:
(i) Buyer acknowledges that certain contractsIf a Liability is incurred exclusively in respect of the DPC Business or the Excluded Businesses, understandings or agreements to which Seller or one or more of its Subsidiaries is party contain terms that are relevant to, are for the benefit of and/or impose obligations on Seller and its Subsidiaries with respect to both the Business and one or more of Seller’s Other Businesses (such contracts, understandings and arrangements being collectively referred to herein as “Shared Contracts”). Buyer acknowledges and agrees that such Shared Contracts Liability shall be addressed by allocated to Buyer (in respect of the parties as set forth DPC Business) or DuPont (in this Section 8T.respect of the Excluded Businesses);
(ii) If a Liability cannot be so allocated under clause (i) above, such Liability shall be allocated to DuPont or Buyer, as the case may be, based on the relative proportions of total economic benefit received (over the term of the Shared Contract remaining as of the Closing Date, measured as of the date of the allocation) by the DPC Business or the Excluded Business under the relevant Shared Contract. Notwithstanding the foregoing, each of DuPont and Buyer shall be responsible for any or all Liabilities arising from its (or its Subsidiary's) breach of the relevant Shared Contract to which this Section 8T(ii5.16 otherwise pertains.
(b) If DuPont or any Retained Subsidiary, on the one hand, or Buyer or any of its Subsidiaries (including the Transferred DPC Companies and their Subsidiaries), on the other hand, receives any benefit or payment which under any Shared Contract was intended for the other, DuPont and Buyer will use their respective reasonable best efforts to, and to cause their respective Subsidiaries to, deliver such benefit or payment to the other party.
(c) Notwithstanding anything to the contrary herein, the parties agree that the Shared Contracts listed on Section 5.16(c)(i) of the Seller Seller's Disclosure Letter Schedule shall not be deemed to be DPC Assets hereunder (as amended the "Excluded Shared Contracts"). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Section 5.16(c)(ii) of the Seller's Disclosure Schedule, be separated into separate Contracts between the appropriate third party and either the Excluded Businesses or the DPC Business. The parties agree to cooperate and provide reasonable assistance prior to the Closing (with no obligation on the part of either party to pay any costs or fees with respect to such assistance) in effecting the separation of such Shared Contracts. Notwithstanding anything to the contrary herein, without the prior written consent of Buyer, no Transferred DPC Company, any Subsidiary of the Transferred DPC Companies or any Joint Venture or any of its Subsidiaries shall enter into any new Shared Contract after the date hereof or any separate Contract with the agreement of Buyer and Seller) sets forth certain material Shared Contracts under which, except as set forth in the Ancillary Agreements, Buyer, the members of the Paper Group (and their Subsidiaries) and the Business shall cease respect to have any rights or obligations from and after the Closing. Seller acknowledges and agrees that, from and after the Closing, it and its Subsidiaries shall be solely responsible for performance all of the Shared Contracts set forth on Section 8T(ii5.16(c)(ii) of the Seller Seller's Disclosure Letter and Buyer acknowledges and agrees Schedule to the extent that neither it nor such new or separate Contract (x) is a sourcing Contract containing "take or pay" obligations of such Transferred DPC Company, Joint Venture or respective Subsidiary thereof or (y) requires payment of any of its Affiliates (including any member of the Paper Group costs by such Transferred DPC Company, Joint Venture or any other Affiliate that owns assets of the Business) shall have any rights or obligations under any of the Shared Contracts except as set forth in the Ancillary Agreementsrespective Subsidiary thereof to terminate such separate Contract.
(iiid) As used in this Section 8T(iii) of 5.16, Buyer's Subsidiaries shall include the Seller Disclosure Letter (as amended after the date hereof with the agreement of Buyer Transferred DPC Companies and Seller) sets forth certain material Shared Contracts under which both the Business and Seller’s Other Businesses perform obligations, have liabilities and/or receive benefits (the “Ongoing Shared Contracts”). With respect to each Ongoing Shared Contract, from and after the date hereof until expiration or termination of such Ongoing Shared Contract, each of Seller and Buyer shall, at the request of the other, cooperate with each other to schedule discussions and participate in negotiations with the counterparty to, or obligor or obligee under, each such Ongoing Shared Contract regarding a split of such Ongoing Shared Contract that, as nearly as practicable, approximates the rights and obligations of the Business and Seller’s Other Businesses with respect to such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to such split; provided that in no event shall either Seller or Buyer be obligated to execute, deliver or (except to the extent executed and delivered by such Person) perform under, or be obligated to cause another Person to execute, deliver or (except to the extent executed and delivered by such Person) perform under, such split contract without such party’s prior written consent. For the avoidance of doubt, in no event shall the split of, or any similar action with respect to, any Ongoing Shared Contract be a condition to the obligations of any party to this Agreement.
(iv) To the extent that a split contract with respect to such Ongoing Shared Contract is not obtained prior to Closing, then from and after the Closing until such Ongoing Shared Contract expires or is terminated, to the extent permitted by law and, unless waived by Seller, to the extent otherwise permissible in light of the terms of such Ongoing Shared Contract, then Seller shall cause Seller’s Other Businesses and Buyer shall cause Buyer Sub, the members of the Paper Group, each of their respective Subsidiaries and the Business to perform obligations under each such Ongoing Shared Contract to which it is a party or bound and Seller and Buyer shall cooperate with each other and use reasonable best efforts such that the applicable members of the Paper Group and their Subsidiaries shall perform the obligations under, and receive the benefits of, such Ongoing Shared Contracts, in each case in the manner set forth on Section 8T(iv) of the Seller Disclosure Letter (as amended after the date hereof with the consent of Buyer and Seller) or otherwise in a manner that as nearly as practicable approximates the obligations and benefits of the Business and Seller’s Other Businesses with respect to such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to Closing. In the event that, after the Closing, Buyer performs its obligations under an Ongoing Shared Contract that has not been split and Seller or one of its Subsidiaries receives benefits under such Ongoing Shared Contract that are attributable to the operations of the Business after the Closing Date, Seller shall pay over such benefits to Buyer. In the event that, after the Closing, Seller performs its obligations under an Ongoing Shared Contract that has not been split and Buyer or one of its Subsidiaries receives benefits that are attributable to the operation of one of Seller’s Other Businesses after Closing, Buyer shall pay over such benefits to Seller. Each of Buyer and Seller shall indemnify the other for Losses such party or its Affiliates suffer as a result of any breach of any Ongoing Shared Contract by such partyJoint Ventures.
(v) Buyer and Seller agree that, from and after the Closing, such party shall not, and shall cause its Affiliates not to, amend, waive, settle or compromise any material matter or claim related to any Ongoing Shared Contract without the prior written consent of the other. For all purposes of this Section 8T, upon an effective split of an Ongoing Shared Contract that each of Buyer and Seller has agreed to, such Ongoing Shared Contract shall be deemed terminated for purposes of this Section 8T.
Appears in 1 contract
Shared Contracts. (a) Purchaser and the Sellers shall cooperate and use commercially reasonable efforts to cause each counterparty (the “Counterparty”) to each Shared Contract to enter into stand-alone arrangements (i) Buyer acknowledges between any of the Companies, Purchaser or its relevant Affiliate on the one hand, and the Counterparty on the other hand, in respect of either the provision of goods or services that certain contractsthe Business provided to the Counterparty on the one hand, understandings and the provision of goods or agreements services that the Counterparty provided to which the Business on the other hand, under such Shared Contract and (ii) between a Seller or its relevant Affiliate on the one hand, and the Counterparty on the other hand, in respect of the provision of the goods or more services that the Seller Group provided to the Counterparty in respect of its Subsidiaries is party contain the Retained Business under such Shared Contract on the one hand or the provision of the goods or services that the Counterparty provided to the Seller Group in respect of the Retained Business under such Shared Contract on the other hand, in each case, on terms that are relevant tosubstantially similar to those in existence on the date hereof in respect of those respective goods or services (such act, are for the benefit “Shared Contract Separation”); provided, however, that, except as required by Section 11.6 (Expenses), none of and/or impose obligations on Seller the Sellers, Purchaser or their respective Affiliates shall be required to take any Extraordinary Actions in connection with the foregoing. Purchaser and its Subsidiaries the Sellers shall coordinate communications and outreach activities with respect to both the Business Counterparties to effect the Shared Contract Separation.
(b) To the extent the Shared Contract Separation has not been completed in respect of any Shared Contract on or prior to the Closing or, in the case of contract that is a Deferred Build Engine Asset, on or prior to the date that such Contract is to be conveyed, transferred, assigned, assumed and one or more of Seller’s Other Businesses delivered to Purchaser pursuant to Section 5.14(c) (such contractsShared Contract, understandings and arrangements being collectively referred to herein as a “Stranded Shared ContractsContract”). Buyer acknowledges , then, from the Closing until the earliest of (x) completion of the Shared Contract Separation, (y) the expiration or termination of the Stranded Shared Contract in accordance with its terms (without any extensions or renewals thereof unless automatic or pre-determined extension or renewal is provided for therein in accordance with the terms thereof) and agrees (z) the date that such is the second (2nd) anniversary of the Closing Date, each of Purchaser and its Affiliates, on the one hand, and the Sellers and their Affiliates, on the other hand, shall (i) provide or cause to be provided to the other Parties all commercially reasonable assistance as is reasonably requested in connection with completing the Shared Contracts Contract Separation (provided that, except as required by Section 11.6 (Expenses), none of the Sellers, Purchaser or their respective Affiliates shall be addressed by the parties as set forth required to take any Extraordinary Actions in this Section 8T.
connection therewith) and (ii) Section 8T(ii) solely to the extent permitted by the terms of the Seller Disclosure Letter (as amended after applicable Stranded Shared Contract and applicable Law, use commercially reasonable efforts to cooperate in a reasonable Back-to-Back Arrangement; provided that, to the date hereof extent that any Transaction Agreement contemplates the terms of any Back-to-Back Arrangement with respect to any Stranded Shared Contract, the agreement of Buyer and Seller) sets forth certain material Shared Contracts under which, except as terms set forth in the Ancillary AgreementsTransaction Agreement shall govern with respect to any such Back-to-Back Arrangement. With respect to rights and Liabilities under or resulting from a given Stranded Shared Contract, Buyersuch rights and Liabilities shall, unless otherwise allocated pursuant to this Agreement or a written agreement between the members of Parties and the Paper Group (Counterparty to such Stranded Shared Contract, be allocated following the Closing from time to time between the Sellers and their Subsidiaries) Affiliates, on the one hand, and Purchaser and the Business shall cease Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received or to have any rights or obligations from and be received after the ClosingClosing by the Sellers and their Affiliates, on the one hand, or Purchaser and the Companies, on the other hand, under such Stranded Shared Contract. Seller acknowledges and agrees thatNotwithstanding the foregoing, from and after the Closing, it and its Subsidiaries following Closing each Party shall be solely responsible for performance any and all Liabilities to the extent arising out of the or relating to such Party’s (or its Affiliates’) breach of such Stranded Shared Contracts set forth on Section 8T(ii) of the Seller Disclosure Letter and Buyer acknowledges and agrees that neither it nor any of its Affiliates (including any member of the Paper Group or any other Affiliate that owns assets of the Business) shall have any rights or obligations under any of the Shared Contracts except as set forth in the Ancillary AgreementsContract.
(iiic) Section 8T(iii) of Purchaser further agrees that subject to the Seller Disclosure Letter (as amended after the date hereof Sellers’ compliance with the agreement terms of Buyer and Seller) sets forth certain material Shared Contracts under which both this Agreement, the Business and Seller’s Other Businesses perform obligations, have liabilities and/or receive benefits (the “Ongoing Shared Contracts”). With respect failure to each Ongoing obtain any Consent from a Counterparty to a Stranded Shared Contract, from and after complete the date hereof until expiration or termination of such Ongoing Shared Contract, each of Seller and Buyer shall, at the request of the other, cooperate with each other to schedule discussions and participate in negotiations with the counterparty to, or obligor or obligee under, each such Ongoing Shared Contract regarding Separation or to enter into a split of such Ongoing Shared Contract that, as nearly as practicable, approximates the rights and obligations of the Business and Seller’s Other Businesses with respect to such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to such split; provided that in no event Back-to-Back Arrangement shall either Seller or Buyer not be obligated to execute, deliver or (except a condition to the extent executed and delivered by such Person) perform underClosing, or be obligated to cause another Person to executeit being acknowledged, deliver or (except to the extent executed and delivered by such Person) perform under, such split contract without such party’s prior written consent. For for the avoidance of doubt, in no event that this sentence shall not limit the split of, or any similar action with respect to, any Ongoing Shared Contract be a condition to the obligations of any party to this Agreement.
(iv) To the extent that a split contract with respect to such Ongoing Shared Contract is not obtained prior to Closing, then from and after the Closing until such Ongoing Shared Contract expires or is terminated, to the extent permitted by law and, unless waived by Seller, to the extent otherwise permissible in light of the terms of such Ongoing Shared Contract, then Seller shall cause Seller’s Other Businesses and Buyer shall cause Buyer Sub, the members of the Paper Group, each of their respective Subsidiaries and the Business to perform obligations under each such Ongoing Shared Contract to which it is a party or bound and Seller and Buyer shall cooperate with each other and use reasonable best efforts such that the applicable members of the Paper Group and their Subsidiaries shall perform the obligations under, and receive the benefits of, such Ongoing Shared Contracts, in each case in the manner express conditions set forth on Section 8T(iv) of the Seller Disclosure Letter in Article 8 (as amended after the date hereof with the consent of Buyer and Seller) or otherwise in a manner that as nearly as practicable approximates the obligations and benefits of the Business and Seller’s Other Businesses with respect Conditions to such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior Obligations to Closing. In the event that, after the Closing, Buyer performs its obligations under an Ongoing Shared Contract that has not been split and Seller or one of its Subsidiaries receives benefits under such Ongoing Shared Contract that are attributable to the operations of the Business after the Closing Date, Seller shall pay over such benefits to Buyer. In the event that, after the Closing, Seller performs its obligations under an Ongoing Shared Contract that has not been split and Buyer or one of its Subsidiaries receives benefits that are attributable to the operation of one of Seller’s Other Businesses after Closing, Buyer shall pay over such benefits to Seller. Each of Buyer and Seller shall indemnify the other for Losses such party or its Affiliates suffer as a result of any breach of any Ongoing Shared Contract by such partyClose).
(v) Buyer and Seller agree that, from and after the Closing, such party shall not, and shall cause its Affiliates not to, amend, waive, settle or compromise any material matter or claim related to any Ongoing Shared Contract without the prior written consent of the other. For all purposes of this Section 8T, upon an effective split of an Ongoing Shared Contract that each of Buyer and Seller has agreed to, such Ongoing Shared Contract shall be deemed terminated for purposes of this Section 8T.
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Sources: Purchase Agreement (At&t Inc.)
Shared Contracts. (i) Buyer acknowledges that certain contracts, understandings or agreements to which Seller or one or more of its Subsidiaries is party contain terms that are relevant to, are for the benefit of and/or impose obligations on Except as otherwise agreed by Seller and its Subsidiaries with respect to both Purchaser in writing or as otherwise provided in this Agreement or any of the Business and one or more Transaction Agreements, until the expiration date of Seller’s Other Businesses (such contracts, understandings and arrangements being collectively referred to herein as “any Shared Contracts”). Buyer acknowledges and agrees that such Shared Contracts shall be addressed by the parties as Contract set forth in this on Section 8T.
(ii) Section 8T(ii) 3.17 of the Seller Disclosure Letter (as amended after the date hereof with the agreement of Buyer and Sellera “Specified Shared Contract”) sets forth certain material Shared Contracts under which, except as set forth in the Ancillary Agreements, Buyer(without giving effect to any extension thereof), the members of the Paper Group Parties shall (and shall cause their Subsidiariesrespective Affiliates to) use commercially reasonable efforts to obtain or structure an arrangement for Purchaser and the Business shall cease to have any rights or obligations from and after the Closing. Seller acknowledges and agrees thatits Affiliates to, from and after the Closing, it obtain the claims, rights and benefits, and assume the corresponding Liabilities and obligations thereunder (other than to the extent related to or arising out of a breach or other violation of such Shared Contract at or prior to the Closing), of such portion of any such Shared Contract that is related to the Business with terms and conditions materially similar to those terms and conditions applicable as of the date hereof or, if entered into after the date hereof, as of immediately prior to the Closing, as reasonably determined by Seller and Purchaser; provided, however, (A) that none of Purchaser or any of its Affiliates shall be under any obligation to enter into any such arrangement with respect to, or obtain any claims, rights and benefits, or assume any corresponding Liabilities and obligations under, any Shared Contract that is not a Specified Shared Contract, unless Purchaser and Seller agree in writing that they intend for such Shared Contract to be a Specified Shared Contract and (B) Shared Contractual Liabilities pursuant to, under or 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 Business) or Seller (in respect of the other businesses of Seller 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 shall be solely responsible for performance in respect of the Shared Contracts set forth on Section 8T(ii) of the Business and Seller Disclosure Letter and Buyer acknowledges and agrees that neither it nor or any of its Affiliates (including other than the Acquired Companies) in respect of its other businesses, as reasonably determined in good faith by Purchaser and Seller. Notwithstanding the foregoing or anything to the contrary in this Agreement, (i) Seller or Purchaser, as applicable, shall be responsible for any member or all Liabilities arising from its (or its Affiliates’) direct or indirect breach of the Paper Group any Specified Shared Contract, (ii) Seller shall be responsible for any and all Liabilities arising from or any other Affiliate that owns assets of the Business) shall have any rights or obligations under relating to any of the pre-Closing direct or indirect breach of any Specified Shared Contracts except as set forth in the Ancillary Agreements.
Contract and (iii) Section 8T(iii) of the Seller Disclosure Letter (as amended after the date hereof with the agreement of Buyer and Seller) sets forth certain material Shared Contracts under which both the Business and Seller’s Other Businesses perform obligations, have liabilities and/or receive benefits (the “Ongoing Shared Contracts”). With respect to each Ongoing Shared Contract, from and after the date hereof until expiration or termination of such Ongoing Shared Contract, each of Seller and Buyer shall, at the request of the other, cooperate with each other to schedule discussions and participate in negotiations with the counterparty to, or obligor or obligee under, each such Ongoing Shared Contract regarding a split of such Ongoing Shared Contract that, as nearly as practicable, approximates the rights and obligations of the Business and Seller’s Other Businesses with respect to such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to such split; provided that in no event shall either Seller or Buyer be obligated to execute, deliver or (except to the extent executed and delivered by such Person) perform under, or be obligated to cause another Person to execute, deliver or (except to the extent executed and delivered by such Person) perform under, such split contract without such party’s prior written consent. For the avoidance of doubt, in no event shall the split of, or any similar action with respect to, any Ongoing Shared Contract be a condition to the obligations of any party to this Agreement.
(iv) To the extent that a split contract with respect to such Ongoing Shared Contract is not obtained prior to Closing, then from and after the Closing until such Ongoing Shared Contract expires or is terminated, to the extent permitted by law and, unless waived by Seller, to the extent otherwise permissible in light of the terms of such Ongoing Shared Contract, then Seller shall cause Seller’s Other Businesses and Buyer shall cause Buyer Sub, the members of the Paper Group, each of their respective Subsidiaries and the Business to perform obligations under each such Ongoing Shared Contract to which it is a party or bound Purchaser and Seller and Buyer shall cooperate with each other and use reasonable best efforts such that the applicable members of the Paper Group and their Subsidiaries shall perform the obligations under, and receive the benefits of, such Ongoing Shared Contracts, in each case in the manner set forth on Section 8T(iv) of the Seller Disclosure Letter (as amended after the date hereof with the consent of Buyer and Seller) or otherwise in a manner that as nearly as practicable approximates the obligations and benefits of the Business and Seller’s Other Businesses with respect to such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to Closing. In the event that, after the Closing, Buyer performs its obligations under an Ongoing Shared Contract that has not been split and Seller or one of its Subsidiaries receives benefits under such Ongoing Shared Contract that are attributable to the operations of the Business after the Closing Date, Seller shall pay over such benefits to Buyer. In the event that, after the Closing, Seller performs its obligations under an Ongoing Shared Contract that has not been split and Buyer or one of its Subsidiaries receives benefits that are attributable to the operation of one of Seller’s Other Businesses after Closing, Buyer shall pay over such benefits to Seller. Each of Buyer and Seller shall indemnify the other for Losses such party or its Affiliates suffer as a result of any breach of any Ongoing Shared Contract by such party.
(v) Buyer and Seller agree that, from and after the Closing, such party shall not, and shall cause its their respective Affiliates not to, amend(A) amend or modify in a manner that is adverse to the other Person, waive, settle any of its Affiliates or compromise the Business in any material matter respect or claim related to terminate any Ongoing Specified Shared Contract without (excluding, for the prior written consent avoidance of doubt, any expiration or automatic extension or renewal of any such Specified Shared Contract pursuant to its terms), or (B) waive any material benefit or right under any Specified Shared Contract of the other. For all purposes other Person, any of this Section 8Tits Affiliates, upon an effective split of an Ongoing Shared Contract that each of Buyer and Seller has agreed to, such Ongoing Shared Contract shall be deemed terminated for purposes of this Section 8T.or the Business.
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Shared Contracts. (i) Buyer acknowledges The parties acknowledge that certain contracts, understandings or agreements to which Seller or one or more of its Subsidiaries is party contain terms that are relevant to, are for the benefit of and/or impose obligations on Seller and its Subsidiaries with respect Affiliates (including the Acquired Group) are parties to both certain Contracts (collectively, the Business and one or more of Seller’s Other Businesses (such contracts, understandings and arrangements being collectively referred to herein as “Shared Contracts”). Buyer acknowledges and agrees ) that such Shared Contracts shall be addressed by relate in part to both (x) the parties as set forth in this Section 8T.
(ii) Section 8T(ii) of the Seller Disclosure Letter (as amended after the date hereof with the agreement of Buyer and Seller) sets forth certain material Shared Contracts under which, except as set forth in the Ancillary Agreements, Buyer, the members of the Paper Group (and their Subsidiaries) and the Business shall cease to have any rights or obligations from and after the Closing. Seller acknowledges and agrees that, from and after the Closing, it and its Subsidiaries shall be solely responsible for performance of the Shared Contracts set forth on Section 8T(ii) of the Seller Disclosure Letter and Buyer acknowledges and agrees that neither it nor any of its Affiliates (including any member of the Paper Group or any other Affiliate that owns assets of the Business) shall have any rights or obligations under any of the Shared Contracts except as set forth in the Ancillary Agreements.
(iii) Section 8T(iii) of the Seller Disclosure Letter (as amended after the date hereof with the agreement of Buyer and Seller) sets forth certain material Shared Contracts under which both the Business and Seller’s Other Businesses perform obligations, have liabilities and/or receive benefits (the “Ongoing Shared Contracts”). With respect to each Ongoing Shared Contract, from and after the date hereof until expiration or termination of such Ongoing Shared Contract, each of Seller and Buyer shall, at the request of the other, cooperate with each other to schedule discussions and participate in negotiations with the counterparty to, or obligor or obligee under, each such Ongoing Shared Contract regarding a split of such Ongoing Shared Contract that, as nearly as practicable, approximates the rights and obligations operations of the Business and Seller’s Other Businesses with respect to such Ongoing Shared Contract during (y) the term operations of the Ongoing Shared Contract prior to such splitRetained Business; provided that in no event shall either any Shared Contracts include this Agreement, any of the other Transaction Agreements, or any Contracts for the provision of enterprise-level services from the Retained Group to the Business or similar enterprise-level arrangements. Subject to Section 6.02(g) and the fourth paragraph in Section 6.06 of the Seller Disclosure Schedule, the parties shall, and shall cause their respective Affiliates to, cooperate with each other and use their respective reasonable best efforts prior to the Closing to cause the Shared Contracts to be apportioned (including by obtaining the consent of such counterparty to enter into a new Contract or amendment, or splitting or assigning in relevant part such Shared Contract), effective as of the Closing, between Buyer be obligated and its Affiliates, on the one hand, and Seller and its Affiliates, on the other hand, pursuant to executewhich (i) Seller will assume, deliver or (except cause its Affiliates to assume, all of the rights and obligations under such Shared Contracts to the extent executed related to the operations of the Retained Business, (ii) Buyer or a Subsidiary thereof will assume all of the rights and delivered by obligations under such Person) perform under, or be obligated to cause another Person to execute, deliver or (except Shared Contracts to the extent executed related to the operations of the Business, (iii) Seller shall cause the applicable counterparty to release Buyer and delivered by such Personits Subsidiaries (including the Acquired Group) perform underfrom the obligations of Seller and its Affiliates arising after the Closing Date under the portion of the Shared Contract apportioned to Seller (or its Affiliates) and (iv) Buyer shall cause the applicable counterparty to release Seller and its Affiliates, such split contract without such party’s prior written consentas applicable, from the obligations of Buyer and its Subsidiaries (including the Acquired Company) arising after the Closing Date under the portion of the Shared Contract apportioned to Buyer and its Subsidiaries. For the avoidance of doubt, and notwithstanding anything in no event this Agreement to the contrary, Seller and its Affiliates shall not be required to cause the split of, or partial assignment of any similar action with respect to, any Ongoing Shared Contract to Buyer or its Subsidiaries for any purpose other than the conduct of the Business. Any Shared Contract for which the arrangements described in this Section 6.15 cannot be a condition entered into prior to the obligations Closing shall be subject to Section 6.02(g) and the fourth paragraph in Section 6.06 of any party to this Agreement.
(iv) To the extent that a split contract Seller Disclosure Schedule and, with respect to any such Ongoing Shared Contract is not obtained prior to Closing, then from and after the Closing until such Ongoing Shared Contract expires or is terminated, to the extent permitted by law and, unless waived by Seller, to the extent otherwise permissible in light of the terms of such Ongoing Shared Contract, then Seller prior to the date that is twelve (12) months following the Closing, (A) the parties shall cause Seller’s Other Businesses work together in good faith to determine the feasibility of separating such Shared Contract and Buyer shall cause Buyer Sub(B) if, notwithstanding such good faith efforts, the members of parties are unable to agree on a mutually satisfactory plan for separating any such Shared Contract, the Paper Group, each of their respective Subsidiaries and the Business to perform obligations under each such Ongoing Shared Contract to which it is a party or bound and Seller and Buyer shall cooperate with each other and parties will use reasonable best efforts such that to negotiate in good faith appropriate means for (1) Buyer and its Subsidiaries to obtain the applicable members of the Paper Group benefits and their Subsidiaries shall perform assume the obligations under, and receive the benefits of, such Ongoing Shared Contracts, in each case in the manner set forth on Section 8T(iv) of the Seller Disclosure Letter (as amended after the date hereof associated with the consent portion of Buyer and Seller) or otherwise in a manner that as nearly as practicable approximates the obligations and benefits of the Business and Seller’s Other Businesses with respect to such Ongoing Shared Contract during to the term of the Ongoing Shared Contract prior to Closing. In the event that, after the Closing, Buyer performs its obligations under an Ongoing Shared Contract that has not been split and Seller or one of its Subsidiaries receives benefits under such Ongoing Shared Contract that are attributable extent relating to the operations of the Business after for a transitional period to be no longer than twelve (12) months following the Closing Date, and (2) Seller shall pay over and its Affiliates to obtain the benefits and assume the obligations associated with the portion of such benefits to Buyer. In the event that, after the Closing, Seller performs its obligations under an Ongoing Shared Contract that has not been split and Buyer or one of its Subsidiaries receives benefits that are attributable to the extent relating to the operation of one the Retained Businesses for a transitional period to be no longer than twelve (12) months following the Closing; provided, that in no event shall Buyer, Seller or any of Seller’s Other Businesses after Closingtheir Affiliates (including the Acquired Group) be required to pay any fee, Buyer shall pay over such benefits penalty or other consideration to Seller. Each of Buyer and Seller shall indemnify the other for Losses such any third party or its Affiliates suffer as a result of make any breach of any Ongoing Shared Contract by such party.
(v) Buyer and Seller agree that, from and after the Closing, such party shall not, and shall cause its Affiliates not to, amend, waive, settle or compromise any material matter or claim related concession to any Ongoing Shared Contract third party (other than customary commercial concessions that are not material) to fulfill their respective obligations under this Section 6.15 and in no event shall Seller or the Acquired Group agree to (x) pay for any such fee, penalty or other consideration or (y) any such concession, in each case without the prior written consent of Buyer; provided, further, that Buyer shall reimburse Seller or the otherapplicable member of the Retained Group, and Seller shall reimburse Buyer or the applicable member of the Acquired Group, for its proportional share (based on the utilization of the applicable Shared Contract, as the parties shall agree in good faith) of any reasonable and documented out-of-pocket expenses incurred by Seller or the applicable member of the Retained Group or Buyer or the applicable member of the Acquired Group, as applicable, in connection with any such arrangement described in clause (B) above to the extent such services and costs are not otherwise contemplated by the Transition Services Agreement. For From and after the Closing, (I) Buyer shall reimburse, indemnify and hold harmless the Retained Group against all purposes Liabilities arising from or relating to the portion of this Section 8T, upon an effective split of an Ongoing any Shared Contract that each of apportioned to the Retained Group, (II) Seller shall reimburse, indemnify and hold harmless Buyer and Seller has agreed to, such Ongoing its Affiliates (including the Acquired Group) against all Liabilities arising from or relating to the portion of any Shared Contract apportioned to the Acquired Group, and (III) neither party nor any of its Affiliates shall be deemed terminated for purposes extend the term or otherwise amend the terms of this Section 8T.any Shared Contract in a manner that would materially and adversely affect, in the case of Buyer, any member of the Retained Group without Seller’s prior written consent, or in the case of Seller, Buyer or any member of the Acquired Group without Buyer’s prior written consent.
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Shared Contracts. (ia) Buyer acknowledges that certain contracts, understandings or agreements to which Seller or one or more of its Subsidiaries is party contain terms that are relevant to, are for the benefit of and/or impose obligations on Seller and its Subsidiaries with respect to both the Business and one or more of Seller’s Other Businesses (such contracts, understandings and arrangements being collectively referred to herein as “Shared Contracts”). Buyer acknowledges and agrees that such Shared Contracts shall be addressed by the parties as set forth in this Section 8T.
(ii) Section 8T(ii) of the Seller Disclosure Letter (as amended after From the date hereof with until the agreement of Buyer date that is six (6) months following the Principal Closing Date, Seller shall or shall cause the Company to, and Seller) sets forth certain material Shared Contracts under which, except as set forth in the Ancillary Agreements, Buyer, the members of the Paper Group (and their Subsidiaries) and the Business shall cease to have any rights or obligations from and after the Principal Closing. Seller acknowledges , Purchaser shall cause the Company to, use its reasonable best efforts to work with the other party (and, if necessary and agrees desirable, to work with the third party to any Shared Contract) 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 Principal Closing, (i) the Company or an Affiliate of the Company is the beneficiary of the rights and is solely responsible for the obligations related to the portion of such Shared Contract to the extent such obligations are related to the Business (the “Company Portion”), which rights shall be an asset of and which obligations shall be a liability of the Company or an Affiliate of the Company, and (ii) Seller or an Affiliate of Seller (other than a Group Company) is the beneficiary of the rights and is solely responsible for the obligations related to the Seller Business (the “Seller Portion”), which rights shall be an asset of and which obligations shall be a liability of Seller or an Affiliate of Seller (other than a Group Company). Nothing in this Agreement shall require the division, partial assignment, modification or replication of a Shared Contract unless and until any necessary Consents are obtained or made, as applicable. From and after the Principal Closing, Purchaser shall indemnify and hold harmless Seller and its Affiliates from any Losses and liabilities incurred by Seller or its Affiliates arising from or relating to the Company Portion of any Shared Contract and Seller shall indemnify and hold harmless Purchaser, the Group Companies, and their respective Affiliates for any Losses and liabilities incurred by Purchaser, the Group Companies or any of their respective Affiliates arising out of or relating to the Seller Portion of any Shared Contract. If Seller is not able or is not able to cause the Company to, and from and after the Principal Closing, it and its Subsidiaries shall be solely responsible for performance of Purchaser is not able to cause the Shared Contracts set forth on Section 8T(ii) of the Seller Disclosure Letter and Buyer acknowledges and agrees that neither it nor any of its Affiliates (including any member of the Paper Group or any other Affiliate that owns assets of the Business) shall have any rights or obligations under any of the Shared Contracts except as set forth in the Ancillary Agreements.
(iii) Section 8T(iii) of the Seller Disclosure Letter (as amended after the date hereof with the agreement of Buyer and Seller) sets forth certain material Shared Contracts under which both the Business and Seller’s Other Businesses perform obligations, have liabilities and/or receive benefits (the “Ongoing Shared Contracts”). With respect to each Ongoing Shared Contract, from and after the date hereof until expiration or termination of such Ongoing Shared Contract, each of Seller and Buyer shall, at the request of the other, cooperate with each other to schedule discussions and participate in negotiations with the counterparty Company to, enter into an arrangement to divide, partially assign, modify or obligor replicate (in whole or obligee under, each such Ongoing Shared Contract regarding a split of such Ongoing Shared Contract that, as nearly as practicable, approximates in part) the rights and obligations under and in respect of the Business and Seller’s Other Businesses with respect to any such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to such split; provided that in no event shall either Seller or Buyer be obligated to executethe Principal Closing, deliver or (except the Principal Closing shall, subject to the extent executed and delivered by such Person) perform under, or be obligated to cause another Person to execute, deliver or satisfaction (except to the extent executed and delivered by such Person) perform under, such split contract without such party’s prior written consent. For the avoidance of doubt, in no event shall the split of, or any similar action with respect to, any Ongoing Shared Contract be a condition to the obligations of any party to this Agreement.
(iv) To the extent that a split contract with respect to such Ongoing Shared Contract is not obtained prior to Closing, then from and after the Closing until such Ongoing Shared Contract expires or is terminatedor, to the extent permitted by law andapplicable Law, unless waived the waiver by Seller, the parties entitled to the extent otherwise permissible in light of the terms of such Ongoing Shared Contract, then Seller shall cause Seller’s Other Businesses and Buyer shall cause Buyer Sub, the members of the Paper Group, each of their respective Subsidiaries and the Business to perform obligations under each such Ongoing Shared Contract to which it is a party or bound and Seller and Buyer shall cooperate with each other and use reasonable best efforts such that the applicable members of the Paper Group and their Subsidiaries shall perform the obligations under, and receive the benefits of, such Ongoing Shared Contracts, in each case in the manner set forth on Section 8T(ivbenefit thereof) of the Seller Disclosure Letter conditions set forth in Article VI (as amended after other than those conditions which by their terms are to be satisfied at the Principal Closing but subject to the satisfaction at the Principal Closing or waiver of such conditions), nonetheless take place on the terms set forth herein and, thereafter and until the earlier of (A) the date hereof with that is six (6) months following the consent Principal Closing and (B) the date on which the division, partial assignment, modification or replication of Buyer such Shared Contract is effected, Seller shall, and SellerPurchaser shall cause the Company to, cooperate in any commercially reasonable arrangement to provide that (1) or otherwise a Group Company shall receive the interest in a manner that as nearly as practicable approximates the benefits and obligations and benefits of the Business Company Portion under and Seller’s Other Businesses with in respect to of such Ongoing Shared Contract during and (2) Seller or an Affiliate of Seller (other than a Group Company) shall receive the term interest in the benefits and obligations of the Ongoing Seller Portion under and in respect of such Shared Contract prior to Closing. In the event that, after the Closing, Buyer performs its obligations under an Ongoing Shared Contract that has not been split and Seller or one of its Subsidiaries receives benefits under such Ongoing Shared Contract that are attributable to the operations of the Business after the Closing Date, Seller shall pay over such benefits to Buyer. In the event that, after the Closing, Seller performs its obligations under an Ongoing Shared Contract that has not been split and Buyer or one of its Subsidiaries receives benefits that are attributable to the operation of one of Seller’s Other Businesses after Closing, Buyer shall pay over such benefits to Seller. Each of Buyer and Seller shall indemnify the other for Losses such party or its Affiliates suffer as a result of any breach of any Ongoing Shared Contract by such partyContract.
(v) Buyer and Seller agree that, from and after the Closing, such party shall not, and shall cause its Affiliates not to, amend, waive, settle or compromise any material matter or claim related to any Ongoing Shared Contract without the prior written consent of the other. For all purposes of this Section 8T, upon an effective split of an Ongoing Shared Contract that each of Buyer and Seller has agreed to, such Ongoing Shared Contract shall be deemed terminated for purposes of this Section 8T.
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