Shared Contracts. (a) With respect to Shared Contractual Liabilities pursuant to, under or relating to a given Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, be allocated between Seller and Buyer (or the Company, as applicable) as follows: (i) If a Liability or obligation is incurred exclusively in respect of the Rolling Mill Business or the Excluded Businesses, such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses); (ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Buyer, as the case may be, based on the relative proportions of total benefit received (over the term of the Shared Contract remaining as of the Closing Date, measured as of the date of the allocation) by the Rolling Mill Business or the Excluded Business under the relevant Shared Contract. Notwithstanding the foregoing, each of Seller and Buyer shall be responsible for any or all Liability or obligation arising from its (or its Subsidiary’s) breach of the relevant Shared Contract to which this Section 5.21 otherwise pertains; provided, however, that each of Seller and Buyer shall be entitled to indemnification from the other for the portion of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.7. (b) If Seller or any Retained Subsidiaries, on the one hand, or Buyer or any of its Subsidiaries, on the other hand, receives any benefit or payment which under any Shared Contract was intended for the other, Seller 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 Schedule Section 5.21(c)(i) shall not be deemed to be Rolling Mill Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties agree to cooperate and use reasonable best efforts prior to the Closing (with no obligation on the part of either party to pay any costs or fees with respect to such assistance) to effect the separation of such Shared Contracts. If such Shared Contracts are not separated at Closing, the parties agree to continue to provide each other with reasonable cooperation and assistance in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared Contracts.
Appears in 2 contracts
Sources: Purchase Agreement (Alcoa Corp), Purchase Agreement (Kaiser Aluminum Corp)
Shared Contracts. (a) With respect Within thirty (30) calendar days after the date hereof, the Company may deliver an updated Schedule 6.15 that sets forth a correct and complete list of Shared Contracts. A Shared Contract that is added to Schedule 6.15 pursuant to this Section 6.15 is referred to herein as a “Supplemental Shared Contractual Liabilities pursuant to, under or relating Contract.”
(b) The Company and Purchaser shall use their Commercially Reasonable Efforts to arrange for Purchaser to enter into a given new Contract with the applicable Third Party to each Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant which new Contract contains the terms and conditions applicable to this Agreement or an Ancillary Agreement, be allocated between Seller and Buyer (or the Company, as applicable) as follows:
(i) If a Liability or obligation is incurred exclusively in respect of the Rolling Mill Business or the Excluded Businesses, such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Buyer, as the case may be, based on the relative proportions of total benefit received (over the term of the Shared Contract remaining as of the Closing Date, measured as of the date of the allocation) by the Rolling Mill Business or the Excluded Business under the relevant hereof with respect to such Shared Contract. Notwithstanding the foregoing, each of Seller and Buyer shall be responsible for any or all Liability or obligation arising from its (or its Subsidiary’s) breach of the relevant Shared Contract to which this Section 5.21 otherwise pertains; provided, however, that each of Seller and Buyer shall be entitled to indemnification from the other for the portion of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.7.
(b) If Seller or any Retained Subsidiaries, on the one hand, or Buyer or any of its Subsidiaries, on the other hand, receives any benefit or payment which under any Shared Contract was intended for the other, Seller 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 In the contrary herein, the parties agree that the Shared Contracts listed on Schedule Section 5.21(c)(i) shall event a new Contract is not be deemed to be Rolling Mill Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated entered into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties agree to cooperate and use reasonable best efforts prior to the Closing as contemplated by Section 6.15(b), from and after the Closing, the Company and Purchaser shall, and shall cause their respective Affiliates to, use Commercially Reasonable Efforts to develop a mutually agreeable arrangement (with no obligation on including by way of amendment or addition of services to the part Transition Services Agreement) under which (i) Purchaser would obtain the benefits and assume the obligations under such Shared Contract to the extent applicable to the Business, including by sub-contracting, sub-licensing, or sub-leasing to Purchaser (such portion of either party to pay any costs such Liabilities, the “Purchaser Portion of the Shared Contract Liabilities” and the remainder of such Liabilities under such Shared Contract, the “Company Portion of the Shared Contract Liabilities”) or fees with respect to (ii) such assistance) to effect the separation portion of such Shared Contracts. If Contract would be held, as of and from the Closing Date, by the Company or its applicable Subsidiary in trust for Purchaser and the covenants and obligations thereunder would be performed by Purchaser in the Company’s or such Shared Contracts are not separated at ClosingSubsidiary’s name and all benefits, obligations and Liabilities existing thereunder to the parties agree extent applicable to continue to provide each other with reasonable cooperation and assistance in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared ContractsBusiness would be for Purchaser’s account.
Appears in 2 contracts
Sources: Asset Purchase Agreement (TTEC Holdings, Inc.), Asset Purchase Agreement (Alj Regional Holdings Inc)
Shared Contracts. (a) With respect Subject to Shared Contractual Liabilities pursuant toSection 6.5(b) below, under or relating to for a given Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, be allocated between Seller and Buyer period of ninety (or the Company, as applicable90) as follows:
(i) If a Liability or obligation is incurred exclusively in respect of the Rolling Mill Business or the Excluded Businesses, such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Buyer, as the case may be, based on the relative proportions of total benefit received (over the term of the Shared Contract remaining as of days following the Closing Date, measured as of Seller Parent shall, and shall cause its Subsidiaries to, reasonably cooperate with Buyer to the date of extent reasonably requested by Buyer to cause the allocation) by the Rolling Mill Business or the Excluded Business under the relevant Shared Contract. Notwithstanding the foregoing, each of Seller and Buyer shall be responsible for counterparty to any or all Liability or obligation arising from its (or its Subsidiary’s) breach of the relevant Shared Contract material to which this Section 5.21 otherwise pertainsthe Business to enter into a new agreement with Buyer (or, at Buyer’s option, the Transferred Group, as appropriate) with respect to the matters addressed by such Shared Contract that are related to the Business; provided, however, that each neither Seller Parent nor any of Seller and Buyer its Subsidiaries shall be entitled required to indemnification from the compromise any right, asset or benefit or expend any amount or incur any liabilities or provide any other for the portion of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth consideration in Section 9.7connection therewith.
(b) If Seller or any Retained Subsidiaries, on With respect to the one hand, or Buyer or any of its Subsidiaries, on the other hand, receives any benefit or payment which under any Shared Contract was intended set forth on Schedule 6.5(b), for a period of one (1) year following the otherClosing Date, Buyer and Seller and Buyer will use their respective reasonable best efforts toParent shall, and to shall cause their respective Subsidiaries to, deliver such benefit or payment reasonably cooperate with each other to the other party.
extent reasonably necessary to cause the counterparty to such Shared Contract to enter into a new agreement with Buyer (c) Notwithstanding anything to the contrary hereinor, at Buyer’s option, the parties agree that the Shared Contracts listed on Schedule Section 5.21(c)(iTransferred Group, as appropriate) shall not be deemed to be Rolling Mill Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties agree to cooperate and use reasonable best efforts prior to the Closing (with no obligation on the part of either party to pay any costs or fees with respect to such assistance) to effect the separation provisions of such Shared Contracts. If contract that are related to Vabomere; provided, that neither Seller Parent nor any of its Subsidiaries shall be required to compromise any right, asset or benefit or expend any amount or incur any liabilities or provide any other consideration in connection therewith; provided, that, in the event that the counterparty to such Shared Contracts are not separated Contract enters into a new agreement with Buyer (or, at ClosingBuyer’s option, the parties agree Transferred Group, as appropriate) with respect to continue to provide each other with reasonable cooperation and assistance in effecting the separation provisions of such Shared Contracts contract that are related to Vabomere, any remaining obligation to make the Milestone Payment in respect of Milestone #6 (as defined in the Rempex Merger Agreement as defined in Schedule 1.1(d)) shall, from and shall treat after the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit date of such Shared Contractsagreement, be deemed an Assumed Liability hereunder.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Medicines Co /De), Purchase and Sale Agreement (Melinta Therapeutics, Inc. /New/)
Shared Contracts. Seller, on the one hand, and Buyer, on the other hand, shall, and shall cause their respective controlled Affiliates to, cooperate and shall use their reasonable best efforts to cause the Contracts set forth in Schedule 5.05(a) (acollectively, the “Designated Shared Contracts”) to be replaced with separate contract rights and obligations (the “Replacement Contracts”) that provide Buyer or any Purchased Company with contract rights and obligations (including as to pricing metrics) under the Designated Shared Contracts that are substantially similar to those contract rights and obligations (including as to pricing metrics) utilized by Seller in the conduct of the Business prior to the Closing. Buyer and Seller shall each bear one-half (1/2) of the costs and expenses associated with first obtaining and/or entering into any Replacement Contract (e.g., transfer fees, deposits, etc.); provided, however, that neither Buyer nor Seller shall be required to incur any further Liabilities or provide any financial accommodation in connection therewith or in connection with its obligations pursuant to Backstop Designated Shared Contracts pursuant to this Section 5.05; provided, further, that Buyer shall be responsible for all ongoing (i.e., going forward, including payments due at the time of first obtaining and/or entering into any Replacement Contract intended to cover Buyer’s and its Subsidiaries’ going forward costs) costs or fees required to be paid under a Replacement Contract or Backstop Designated Shared Contract or any alternative arrangements entered into pursuant to this Section 5.05. Buyer and Seller shall cooperate and provide each other with reasonable assistance in effecting such separation of the Designated Shared Contracts prior to the Closing and for a period of one hundred eighty (180) days following the Closing. In addition, Seller shall, and shall cause its controlled Affiliates to, for a period of one hundred eighty days (180) use their reasonable best efforts to cause any Contract with Coca-Cola Foodservice or its Affiliates to be replaced with a Replacement Contract that provides Buyer or any Purchased Company with contract rights and obligations (including as to pricing metrics) that are substantially similar to those contract rights and obligations (including as to pricing metrics) set forth in the term sheet regarding such arrangement provided to Buyer prior to the date hereof, or such other terms as are reasonably requested by Buyer. If Buyer and Seller are not able to effect the separation of a Designated Shared Contract (each a “Backstop Designated Shared Contract”), such Backstop Designated Shared Contract shall be automatically deemed set forth on Schedule 5.05(b) on the Closing Date and, until any such Backstop Designated Shared Contract is separated or otherwise replaced, but in no event longer than one hundred eighty (180) days, to the extent permissible under Law and under the terms of such Backstop Designated Shared Contract, (i) Seller shall continue to perform the obligations under such Backstop Designated Shared Contract at the sole cost and expense of Buyer (i.e. Buyer shall promptly, but in no event later than thirty (30) days following receipt of a reasonably detailed invoice from Seller, reimburse Seller for any out-of-pocket costs and expenses or payments of obligations made by Seller under such Backstop Designated Shared Contract (which invoices shall be delivered by Seller to Buyer on a monthly basis and shall aggregate all out-of-pocket costs and expenses and payment of obligations made by Seller under all Backstop Designated Shared Contracts during such month, together with reasonable supporting documentation)), and Buyer shall indemnify and hold the Seller Indemnitees harmless from and against any and all Liabilities based upon, arising out of or relating to the interim arrangements contemplated by this clause (i) with respect to the Backstop Designated Shared Contracts, except to the extent any such Liability arises out of the gross negligence or willful misconduct of Seller, (ii) Buyer and Seller shall hold in trust for the benefit of the other Party, and shall promptly forward to the other Party, any monies or other benefits received pursuant to such Backstop Designated Shared Contract relating to the respective businesses of the other Party (or its respective Affiliates) and (iii) Buyer and Seller shall use commercially reasonable efforts to institute alternative arrangements intended to put the Parties in a substantially similar economic position as if such Backstop Designated Shared Contract were separated into Replacement Contracts in accordance with this Section 5.05; provided that, notwithstanding the foregoing provisions of this paragraph, for a period of one hundred eighty (180) days following the Closing, (x) Seller and its Affiliates shall renew each Designated Shared Contract upon the expiration or termination thereof if Buyer has not entered into a Replacement Contract in respect of such Designated Shared Contract, unless Buyer confirms to Seller in writing that Buyer does not need to receive the benefit of such Designated Shared Contract, 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 Seller or its Affiliates, Seller and its Affiliates shall not terminate or cancel such Designated Shared Contract if Buyer has not entered into a Replacement Contract in respect of such Designated Shared Contract, unless Buyer confirms to Seller in writing that Buyer does not need to receive the benefit of such Designated Shared Contract. For a period of one hundred eighty (180) days following the Closing, Buyer and Seller shall reasonably cooperate to replace any Backstop Designated Shared Contracts to the extent such Backstop Designated Shared Contracts are not separated or transitioned hereunder and, for the avoidance of doubt, Seller shall be under no obligation hereunder to (x) deliver to Buyer the same pricing metrics in any Designated Shared Contract in connection with obtaining any Replacement Contract in respect thereof or providing an alternative arrangement with respect to a Backstop Designated Shared Contract or (y) after the Closing Date to separate or transition, or provide Buyer with any rights or benefits under, any Shared Contract that is not a Designated Shared Contract or a Backstop Designated Shared Contract, as the case may be. With respect to Shared Contractual Liabilities pursuant to, under or relating to a given Backstop Designated Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreementa Replacement Contract, be allocated from time to time between Seller and the Retained Subsidiaries, on the one hand, and Buyer (or and the CompanyPurchased Companies, as applicable) as follows:
(i) If a Liability or obligation is incurred exclusively in respect of on the Rolling Mill Business or the Excluded Businesses, such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Buyerother hand, as the case may be, based on the relative proportions of total benefit benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term of the applicable Backstop Designated Shared Contract remaining as of the Closing DateContract, measured as of up to the date of the allocation, without duplication) by the Rolling Mill Business or the Excluded Business under the relevant Shared Contract. Notwithstanding the foregoing, each of Seller and Buyer shall be responsible for any or all Liability or obligation arising from its (or its Subsidiary’s) breach of the relevant Shared Contract to which this Section 5.21 otherwise pertains; provided, however, that each of Seller and Buyer shall be entitled to indemnification from the other for the portion of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.7.
(b) If Seller or any Retained Subsidiaries, on the one hand, or Buyer or any of its Subsidiariesand the Purchased Companies, on the other hand, receives under the relevant Backstop Designated Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible for any benefit and all Liabilities to the extent arising out of or payment which under relating to such Party’s (or its Subsidiaries’) breach of any such Backstop Designated Shared Contract was intended Contract. It is acknowledged that for the otherpurposes of this Section 5.05 changes in volume metrics, Seller and Buyer will use their respective reasonable best efforts toas well as changes to reflect the needs of the applicable Party, 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 Schedule Section 5.21(c)(i) shall not be deemed to be Rolling Mill Assets hereunder considered when determining whether contract rights and obligations are Excluded Assets (the “Excluded Shared Contractssubstantially similar.”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties agree to cooperate and use reasonable best efforts prior to the Closing (with no obligation on the part of either party to pay any costs or fees with respect to such assistance) to effect the separation of such Shared Contracts. If such Shared Contracts are not separated at Closing, the parties agree to continue to provide each other with reasonable cooperation and assistance in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared Contracts.
Appears in 2 contracts
Sources: Asset and Stock Purchase Agreement (Darden Restaurants Inc), Asset and Stock Purchase Agreement (Darden Restaurants Inc)
Shared Contracts. (a) With respect Within 30 days after the date hereof, Seller may deliver an updated Section 3.5(c) of the Disclosure Schedule that sets forth a correct and complete list of Shared Contracts. A Shared Contract that is added to Section 3.5(c) of the Disclosure Schedule pursuant to this Section 5.15(a) is referred to herein as a “Supplemental Shared Contractual Liabilities pursuant toContract.”
(b) Seller and Purchaser shall use their commercially reasonable efforts to arrange for Purchaser or a Purchaser Designee, under or relating as applicable, to enter into a given new Contract with the applicable Third Party to each Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant which new Contract contains the terms and conditions applicable to this Agreement or an Ancillary Agreement, be allocated between Seller and Buyer (or the Company, as applicable) as follows:
(i) If a Liability or obligation is incurred exclusively in respect of the Rolling Mill Business or the Excluded Businesses, such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Buyer, as the case may be, based on the relative proportions of total benefit received (over the term of the Shared Contract remaining as of the Closing Date, measured as of the date of the allocation) by the Rolling Mill Business or the Excluded Business under the relevant hereof with respect to such Shared Contract. Notwithstanding the foregoing, each of Seller and Buyer shall be responsible for any or all Liability or obligation arising from its (or its Subsidiary’s) breach of the relevant Shared Contract to which this Section 5.21 otherwise pertains; provided, however, that each of Seller and Buyer shall be entitled to indemnification from the other for the portion of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.7.
(b) If Seller or any Retained Subsidiaries, on the one hand, or Buyer or any of its Subsidiaries, on the other hand, receives any benefit or payment which under any Shared Contract was intended for the other, Seller 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 In the contrary herein, the parties agree that the Shared Contracts listed on Schedule Section 5.21(c)(i) shall event a new Contract is not be deemed to be Rolling Mill Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated entered into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties agree to cooperate and use reasonable best efforts prior to the Closing as contemplated by Section 5.15(b), from and after the Closing, Seller and Purchaser shall, and shall cause their respective Affiliates to, use commercially reasonable efforts to develop a mutually agreeable arrangement (with no obligation on including by way of amendment or addition of services to the part Transition Services Agreement) under which (i) Purchaser or a Purchaser Designee would obtain the benefits and assume the obligations under such Shared Contract to the extent applicable to the Business, including by sub-contracting, sub-licensing, or sub-leasing to Purchaser or such Purchaser Designee (such portion of either party such Liabilities, the “Purchaser Portion of the Shared Contract Liabilities” and the remainder of such Liabilities under such Shared Contract, the “Seller Portion of the Shared Contract Liabilities”) or (ii) such portion of such Shared Contract would be held, as of and from the Closing Date, by Seller or its applicable Subsidiary in trust for Purchaser or a Purchaser Designee and the covenants and obligations thereunder would be performed by Purchaser or such Purchaser Designee in Seller’s or such Subsidiary’s name and all benefits, obligations and Liabilities existing thereunder to pay any costs the extent applicable to the Business would be for Purchaser’s or fees such Purchaser Designee’s account.
(d) Notwithstanding anything contained herein to the contrary, with respect to such assistance) any Supplemental Shared Contracts that involve the licensing or other use of Third Party Intellectual Property Rights that are material to effect the separation operation or conduct of the Business, in the event that the continued license or use of such Shared Contracts. If Intellectual Property Rights in the operation or conduct of the Business following the Closing Date would require payment by Purchaser or its Subsidiaries of more than $2,500,000 in the aggregate during the 12 month period immediately following the Closing Date (after taking into account the availability of any enterprise licenses or similar rights then held by Purchaser and its Subsidiaries), Purchaser and Seller shall negotiate in good faith with respect to the appropriate allocation of responsibility for such Shared Contracts are not separated at Closing, the parties agree to continue to provide each other with reasonable cooperation and assistance in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared Contractscosts.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Extreme Networks Inc)
Shared Contracts. (a) With respect to Shared Contractual Liabilities pursuant to, under or relating to a given Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, be allocated between Seller and Buyer (or the Company, as applicable) as follows:
(i) If a Liability or obligation is incurred exclusively in respect any Contract of the Rolling Mill Business or the Excluded Businesses, such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Buyer, as the case may be, based on the relative proportions of total benefit received (over the term of the Shared Contract remaining as of the Closing Date, measured as of the date of the allocation) by the Rolling Mill Business or the Excluded Business under the relevant Shared Contract. Notwithstanding the foregoing, each of Seller and Buyer shall be responsible for any or all Liability or obligation arising from its (or its Subsidiary’s) breach of the relevant Shared Contract to which this Section 5.21 otherwise pertains; provided, however, that each of Seller and Buyer shall be entitled to indemnification from the other for the portion of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.7.
(b) If Seller or any Retained Subsidiaries, on the one hand, or Buyer or any of its SubsidiariesAffiliates (other than any Included Contract) which is used in or held for use in the Business but under which the benefits and burdens do not inure exclusively to the Business, including those set forth on Section 5.13 of the Seller Disclosure Schedule (each a “Shared Contract”), the Seller and the Purchaser will use commercially reasonable efforts to enter into, or cause to be entered into, such agreements with the other hand, receives any benefit or payment which under any parties to such Shared Contract was intended Contracts necessary for the otherAsset Selling Affiliate to assign to the Purchaser or its Designated Affiliate(s) and for the Purchaser and its Designated Affiliate(s), Seller as applicable, to assume from such Asset Selling Affiliates only those rights and Buyer will use their respective reasonable best efforts obligations used in, or relating to, the applicable Portion of the Business. To the extent such agreements are entered into, whether prior to or subsequent to either Closing, such rights will be deemed to become “Included Contracts” and such obligations will be deemed to cause their respective Subsidiaries to, deliver such benefit or payment to the other partybecome “Assumed Liabilities.
(c) Notwithstanding anything to the contrary herein, the ” The parties acknowledge and agree that the Shared Contracts listed on Schedule Section 5.21(c)(i) this provision shall not be deemed to be Rolling Mill Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated into separate Contracts between the appropriate Third Party and either the Excluded Businesses require any Person to pay or the Rolling Mill Business. The parties agree to cooperate and use reasonable best efforts prior to the Closing (with no obligation on the part of either party commit to pay any costs amount to (or fees incur any obligation in favor of) any Person in connection with entering into any agreement with respect to such assistanceany Shared Contract (other than nominal filing or application fees or reimbursement of nominal attorneys’ fees). If an agreement is not entered into with respect to the assignment to, and the assumption by, the Purchaser or its Designated Affiliate(s) of those rights and obligations used in, or relating to, the applicable Portion of the Business under any Shared Contract, then the Seller and the Purchaser shall cooperate with each other in any lawful arrangement reasonably satisfactory to effect the separation Seller and the Purchaser under which the Purchaser or its Designated Affiliate(s) would (i) obtain, to the extent practicable, the rights used in, or relating to, the applicable Portion of the Business and assume the corresponding Liabilities under such Shared Contracts. If such Shared Contracts are not separated at ClosingContract (including by means of subcontracting, sublicensing or subleasing arrangement) or under which the parties agree applicable Asset Selling Affiliate would enforce or cause its Affiliates, as appropriate, to continue to provide each other with reasonable cooperation and assistance in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party enforce, for the benefit of the Purchaser or its Designated Affiliate(s), with the Purchaser or its Designated Affiliate(s), as applicable, assuming and agreeing to promptly pay, perform or discharge when due the Seller’s or Asset Selling Affiliates’ Liabilities and expenses to the extent related thereto, any and all of their respective rights which relate to the operation of the applicable Portion of the Business by the Purchaser or its Designated Affiliate(s) from and after the applicable Closing under such Shared ContractsContract and (ii) provide to the Seller and the Assets Selling Affiliates all support necessary or appropriate to enable the Seller or the relevant Asset Selling Affiliate to perform their respective obligations under Shared Contract relating to the applicable Portion of the Business, provided that the resulting economic consequences shall be made to be as similar as reasonably practicable as would have been the case if the rights and obligations relating to the applicable Portion of the Business under such Shared Contract had been transferred to the Purchaser or its Designated Affiliate(s).
Appears in 2 contracts
Sources: Share and Asset Purchase Agreement, Share and Asset Purchase Agreement (Brady Corp)
Shared Contracts. (a) With respect At Buyer’s written request, which may be made at any time until the later of (i) three (3) months following the date hereof and (ii) three (3) months following the date on which the applicable Shared Contract is made available to Buyer, Seller or its applicable Affiliate shall split and partially assign to the Acquired Company, or have replicated for the benefit of the Acquired Company (which may include providing the benefits of such Shared Contractual Liabilities Contract through the Transition Services Agreement), in each case, effective as of the Closing, each Shared Contract which may be split and assigned in part to the Acquired Company or replicated for the benefit of the Acquired Company pursuant toto its terms without the consent of the counterparty thereto (each, under or relating to an “Assignable Shared Contract”).
(b) To the extent that a given Shared Contract does not constitute an Assignable Shared Contract, such Shared Contractual Liabilities shallat Buyer’s written request, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, which may be allocated between Seller and Buyer (or made at any time until the Company, as applicable) as follows:
later of (i) If a Liability or obligation is incurred exclusively in respect of three (3) months following the Rolling Mill Business or the Excluded Businesses, such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
date hereof and (ii) If a Liability or obligation cannot be so allocated under clause three (i3) above, such Liability or obligation shall be allocated months following the date on which the applicable Shared Contract is made available to Seller or Buyer, as Seller shall use commercially reasonable efforts to split and assign in part to the case may be, based on Acquired Company such Shared Contract or otherwise facilitate the relative proportions replication of total such Shared Contract for the benefit received (over the term of the Acquired Company with such Shared Contract remaining counterparty in each case, effective as of the Closing Date, measured as of the date of the allocation) by the Rolling Mill Business or the Excluded Business under the relevant Shared Contract. Notwithstanding the foregoing, each of Seller and Buyer shall be responsible for any or all Liability or obligation arising from its (or its Subsidiary’s) breach of the relevant Shared Contract to which this Section 5.21 otherwise pertainsClosing; provided, however, that each (i) there will be no reduction in the Purchase Price as a result of the failure to split and assign in part or replicate for the benefit of the Acquired Company any such Shared Contract and (ii) assuming Seller’s compliance with this Section 6.16(b), Seller shall not have any liability or obligation whatsoever to Buyer (and Buyer shall will not be entitled to indemnification from assert any claims) arising out of the other failure to split and assign in part or replicate for the portion benefit of Acquired Company any Liability such Shared Contract or obligation arising from any breach as a result of the relevant default, acceleration, termination or loss of right under such Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.7.
(b) If Seller or any Retained Subsidiaries, on the one hand, or Buyer or any of its Subsidiaries, on the other hand, receives any benefit or payment which under any Shared Contract was intended for the other, Seller 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 partyas a result thereof.
(c) Notwithstanding anything to the contrary contrary, none of Seller or its Affiliates shall be required to incur any Liability, pay any money, or provide any other consideration in in connection with its obligations set forth in this Section 6.16. Buyer shall use its commercially reasonable efforts to assist and cooperate with Seller in furtherance of Seller’s efforts pursuant to this Section 6.16; provided, that if any money is paid, or consideration provided, by Seller or its Affiliates to a third party in connection with this Section 6.16, Buyer shall reimburse Seller within ten (10) Business Days of Seller’s notice to Buyer thereof. Except as otherwise provided herein, Buyer shall reimburse Seller for any money paid, or consideration provided, by Seller to any third party (excluding, for the parties agree that avoidance of doubt, Seller’s Representatives) for all fees, including, but not limited to, application fees, administration fees, or processing fees, or any other charges applicable to splitting, assigning or replicating a Shared Contract, including, for the Shared Contracts listed on Schedule Section 5.21(c)(i) shall not be deemed to be Rolling Mill Assets hereunder avoidance of doubt, all fees and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoingexpenses of such third party’s agents, the parties have determined that it is advisable that certain Shared Contractsadvisors, which are identified on Schedule Section 5.21(c)(ii)Representatives, be separated into separate Contracts between the appropriate Third Party counsel, and either the Excluded Businesses or the Rolling Mill Business. The parties agree to cooperate and use reasonable best efforts prior to the Closing (with no obligation on the part of either party to pay any costs or fees accountants with respect to such assistancethereto, within ten (10) to effect the separation Business Days of such Shared Contracts. If such Shared Contracts are not separated at Closing, the parties agree to continue to provide each Seller’s or its Affiliate’s payment of money or provision of other with reasonable cooperation and assistance in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared Contractsconsideration.
Appears in 2 contracts
Sources: Securities Purchase Agreement (National Fuel Gas Co), Securities Purchase Agreement (Centerpoint Energy Resources Corp)
Shared Contracts. (a) With respect to Shared Contractual Liabilities pursuant to, under or relating to a given Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, be allocated between Seller and Buyer (or the Company, as applicable) as follows:
(i) If a Liability or obligation is incurred exclusively in respect of the Rolling Mill Business or the Excluded Businesses, such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Buyer, as the case may be, based on the relative proportions of total benefit received (over the term of the Shared Contract remaining as of the Closing Date, measured as of the date of the allocation) by the Rolling Mill Business or the Excluded Business under the relevant Shared Contract. Notwithstanding the foregoing, each of Seller and Buyer shall be responsible for any or all Liability or obligation arising from its (or its Subsidiary’s) breach of the relevant Shared Contract to which this Section 5.21 otherwise pertains; provided, however, that each of Seller and Buyer shall be entitled to indemnification from the other for the portion of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.7.
(b) If Seller or any Retained SubsidiariesSeller, on the one hand, or Buyer or any of its Subsidiariesand Buyer, on the other hand, receives any benefit or payment which under any Shared Contract was intended for the other, Seller and Buyer will use their respective reasonable best efforts toshall, and to shall cause their respective Subsidiaries to, deliver such benefit cooperate with each other and shall use their commercially reasonable efforts to cause the Shared Contracts set forth in Schedule 5.04(a) (the “Buyer Designated Shared Contracts”) and the Shared Contracts set forth in Schedule 5.04(b) (the “Seller Designated Shared Contracts” and, together with the Buyer Designated Shared Contracts, the “Designated Shared Contracts”) to be replaced with separate contracts (the “Replacement Contracts”) that provide that Buyer or payment any Group Company, 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, 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, prior to the other party.
(c) Notwithstanding Closing. Buyer shall be solely responsible for any additional costs or fees arising from and under a Replacement Contract for a Buyer Designated Shared Contract, or in connection with any arrangement with respect thereto described in this Section 5.04, and Seller shall be solely responsible for any additional costs or fees arising from and under a Replacement Contract for a Seller Designated Shared Contract, or in connection with any arrangement with respect thereto described in this Section 5.04. For the avoidance of doubt, notwithstanding anything to the contrary herein, the parties agree that the Shared Contracts listed on Schedule Section 5.21(c)(i) shall not be deemed to be Rolling Mill Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoingneither Seller, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties agree to cooperate and use reasonable best efforts prior to the Closing (with no obligation on the part of either party to pay any costs or fees with respect to a Replacement Contract for a Buyer Designated Shared Contract, or in connection with any arrangement with respect thereto described in this Section 5.04, nor Buyer, with respect to a Replacement Contract for a Seller Designated Shared Contract, or in connection with any arrangement with respect thereto described in this Section 5.04, shall be responsible for any Liabilities resulting from such assistance) to effect Replacement Contracts, including any increases in pricing or other costs arising as a result of the separation of such Shared Contractstransactions contemplated by this Agreement. If such Shared Contracts are not separated at Closing, the parties agree to continue to Buyer and Seller shall cooperate and provide each other with reasonable cooperation and assistance in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared Contracts.49
Appears in 1 contract
Sources: Securities Purchase Agreement (Centerpoint Energy Inc)
Shared Contracts. (a) With respect Seller and Purchaser acknowledge that Seller and/or its Subsidiaries are parties to certain Contracts that relate in part to both (i) the operations or conduct of the Fluids Business and (ii) the operations or conduct of the Non-Fluids Businesses, including those set forth on Schedule 5.12, but none of which are Contracts with a Top Customer or Top Supplier (collectively, the “Shared Contractual Liabilities pursuant toContracts”); provided that in no event shall the Shared Contracts include any Contract that (A) is a master terms agreement, under or relating similar agreement, whose terms are incorporated by reference in a service or purchase order or similar document, in each case, related to the Fluids Business or (B) is a given Shared Contract, such Shared Contractual Liabilities shallContract solely between the Seller and/or any of the Non-Fluids Subsidiaries. Subject to applicable Law, unless the Seller or its applicable Non-Fluids Subsidiary and Purchaser otherwise allocated agree or the benefits of any Shared Contract described in this Section 5.12 are otherwise expressly conveyed to the applicable party pursuant to this Agreement or an Ancillary Agreementany other Transaction Document, be allocated between Seller and Buyer for a period of twelve (or the Company, as applicable12) as follows:
(i) If a Liability or obligation is incurred exclusively in respect of the Rolling Mill Business or the Excluded Businesses, such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Buyer, as the case may be, based on the relative proportions of total benefit received (over the term of the Shared Contract remaining as of months after the Closing Date, measured Seller or its applicable Non-Fluids Subsidiary and Purchaser shall reasonably cooperate with each other to cause each Shared Contract (other than any Shared Contract that is immaterial to the Fluids Business) to 62 be apportioned (including by using their respective commercially reasonable efforts to obtain 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 date Closing, between Seller or its applicable Non-Fluids Subsidiary and Purchaser (or a Fluids Entity), pursuant to which Seller or its applicable Non-Fluids Subsidiary will assume all of the allocation) by the Rolling Mill Business or the Excluded Business rights and obligations under the relevant Shared Contract. Notwithstanding the foregoing, each of Seller and Buyer shall be responsible for any or all Liability or obligation arising from its (or its Subsidiary’s) breach of the relevant such Shared Contract to which this Section 5.21 otherwise pertains; provided, however, that each of Seller and Buyer shall be entitled to indemnification from the other for the portion of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject extent primarily related to the limitations set forth in Section 9.7.
(b) If Seller or any Retained SubsidiariesNon-Fluids Businesses, on the one hand, and Purchaser (or Buyer or any a Fluids Entity) will assume all of its Subsidiariesthe rights and obligations under such Shared Contract to the extent primarily related to the Fluids Business, on the other hand. From and after the Closing, receives any benefit (1) Purchaser (or payment which under a Fluids Entity) shall reimburse, indemnify and hold harmless Seller and its Affiliates against all Losses arising from or relating to the portion of any Shared Contract was intended for apportioned to the otherFluids Business and (2) Purchaser and its Affiliates shall not extend the term or otherwise amend the terms of any Shared Contract in a manner that would adversely affect Seller or any of its Non-Fluids Subsidiaries without prior written consent of Seller (in its sole discretion). From and after the Closing, (1) Seller shall reimburse, indemnify and hold harmless Purchaser and its Affiliates against all Losses arising from or relating to the portion of any Shared Contract apportioned to the Non-Fluids Business and (2) Seller and Buyer will use their respective reasonable best efforts to, and to cause their respective its Affiliates shall not extend the term or otherwise amend the terms of any Shared Contract in a manner that would adversely affect Purchaser or any of its Non-Fluids Subsidiaries to, deliver such benefit or payment to the other partywithout prior written consent of Purchaser (in its sole discretion).
(cb) Notwithstanding anything in this Agreement to the contrary hereincontrary, without limiting the parties agree obligations of Seller under the Transition Services Agreement, any apportionment to Purchaser of any Shared Contract that shall require the Shared Contracts listed on Schedule Section 5.21(c)(i) consent of a third party shall be made subject to such consent being obtained, and Seller and its Subsidiaries shall not be deemed required to agree to any arrangement or take any action in connection with the matters contemplated by Section 5.12(a) that would (i) constitute a breach or other contravention of the express terms of any Shared Contract or (ii) be Rolling Mill Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated into separate Contracts between the appropriate Third Party and either the Excluded Businesses reasonably likely to subject Seller or the Rolling Mill Business. The parties agree Non-Fluids Subsidiary party thereto, to cooperate and use reasonable best efforts prior civil or criminal liability, or (iii) require Seller or the Non-Fluids Subsidiary party thereto to the Closing (with no obligation on the part of either party pay or commit to pay any costs amount, or fees with respect to such assistancegrant any financial accommodation (including any requirements for the securing or posting of any bonds, letters of credit or similar instruments or the furnishing of any guarantees) to effect the separation of such Shared Contracts. If such Shared Contracts are not separated at Closingto, the parties agree to continue to provide each other with reasonable cooperation and assistance in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared Contractscommence any proceeding against any Person.
Appears in 1 contract
Shared Contracts. (a) Schedule 2.7(a) sets forth a list of all Shared Contracts, indicating which of such Shared Contracts may be assigned in part, pursuant to its terms, without the consent of the counterparty thereto or other conditions, including the payment of a transfer or other fee (the “Assignable Shared Contracts”). Within seven (7) Business Days following the date of this Agreement, Buyer will provide the Sellers with written notice of those Assignable Shared Contracts that Buyer desires Acquisition Sub to assume in part. Each such Assignable Shared Contract for which Buyer provides written notice of its desire to assume in part shall thereafter be deemed to be a Transferred Contract hereunder with respect to the portion thereof assumed by Acquisition Sub and the Seller party to such contract shall, or shall cause one or more of its Subsidiaries, as applicable, to, assign such assumed portion to Acquisition Sub as of the Closing in accordance with the terms of such Assignable Shared Contract.
(b) With respect to each Shared Contractual Liabilities pursuant toContract identified on Schedule 2.7(a) that is not an Assignable Shared Contract (the “Non-Assignable Shared Contracts”), Buyer will also, within seven (7) Business Days following the date of this Agreement, provide the Sellers with written notice of those Non-Assignable Shared Contracts that Buyer desires Acquisition Sub to assume in part. Each Party shall use its commercially reasonable efforts prior to the Closing Date to cause the counterparty to each such Non-Assignable Shared Contract to consent to the partial assignment of such Non-Assignable Shared Contract to Acquisition Sub, or to otherwise enter into a new Contract with Acquisition Sub on substantially the same terms as exist under or relating to a given the applicable Shared Contract, in each case as of the Closing. Each such Non-Assignable Shared Contractual Liabilities Contract for which the parties have received consent to the partial assignment shall thereafter be deemed to be a Transferred Contract hereunder to the extent of the assigned portion and the Seller party to such contract shall, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, be allocated between Seller and Buyer (shall cause one or the Companymore of its Subsidiaries, as applicable) as follows:
(i) If a Liability or obligation is incurred exclusively in respect of the Rolling Mill Business or the Excluded Businesses, such Liability or obligation shall be allocated to, partially assign to Buyer (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Buyer, as the case may be, based on the relative proportions of total benefit received (over the term of the Shared Contract remaining Acquisition Sub as of the Closing Datesuch Contract in accordance with its terms. The Sellers shall not, measured and shall not permit any of its Subsidiaries to, take any action to terminate prior to its expiration any Non-Assignable Shared Contract that is a Material Contract and which has been identified by Buyer as one it desires to assume pursuant to this subsection (b) (and for which an alternative, reasonably acceptable to Buyer, to such contract has not already been implemented by the Parties), or knowingly take any action or fail to take any action that would permit the other party to any such Non-Assignable Shared Contract to terminate prior to its expiration such Shared Contract, in each case, prior to the date that is twelve (12) months after the Closing Date (and provided that the foregoing shall not obligate a Seller or a Subsidiary to renew a contract after its then current term or prohibit it from terminating such contract for material breach, bankruptcy of the date counterparty or other conditions of force majeure; provided, however, a Seller or a Subsidiary shall notify Buyer in writing at least thirty (30) days prior to any such expiration or termination and the Parties will reasonably and in good faith discuss what course of action best accommodates the interests of the allocation) by Parties with respect to such contracts in light of the Rolling Mill Business expiration or proposed termination, including the Excluded Business under interest of Buyer in continuing to operate the relevant Shared ContractBusiness, provided that during such period the Sellers shall not permit such Contract to lapse or terminate absent such agreement). Notwithstanding the foregoing, the Sellers shall not be required to partially assign to Acquisition Sub at Closing any of the Non-Assignable Shared Contracts for which consent has not been obtained.
(c) With respect to each Non-Assignable Shared Contract for which the arrangements described in Section 2.7(b) were not entered into prior to the Closing Date, the Sellers agree to continue to use their commercially reasonable efforts from and after the Closing Date to cause the counterparty to each such Non-Assignable Shared Contract to consent to the partial assignment of Seller such Non-Assignable Shared Contract to Acquisition Sub, or to otherwise enter into a new Contract with Acquisition Sub or one or more of its Subsidiaries on substantially the same terms as exist under the applicable Shared Contract. Until any such consent or new Contract is obtained the Sellers and Buyer shall will use their respective commercially reasonable efforts to cooperate, in any lawful and reasonable arrangement, to the extent such cooperation would not result in a breach of the terms of such Non-Assignable Shared Contract, and not prohibited under applicable law, which will provide Acquisition Sub the obligations and benefits of any such Non-Assignable Shared Contract with respect to the Business, including subcontracting, licensing, sublicensing, leasing or subleasing to Buyer and its Subsidiaries any or all of such Seller’s and its Subsidiaries’ rights and obligations with respect to such Non-Assignable Shared Contract with respect to the Business. In any such arrangement, Acquisition Sub will (i) bear the sole responsibility for completion of the work or provision of goods and services, (ii) bear all Taxes with respect thereto or arising therefrom to the extent attributable to any period or portion thereof beginning after the Closing Date, (iii) be solely entitled to all benefits thereof, economic or otherwise, (iv) be solely responsible for any warranty or all Liability or obligation arising from its breach thereof, any repurchase, indemnity and service obligations thereof, and (or its Subsidiary’sv) breach promptly reimburse the reasonable costs and expenses of the relevant Shared Contract to which this Section 5.21 otherwise pertainsSellers and their Affiliates related thereto; provided, however, that each of Seller and Buyer Acquisition Sub’s obligations under clauses (i) through (v) shall be entitled limited to indemnification from the other for the that portion of any Liability or obligation arising from any breach of the relevant such Non-Assignable Shared Contract by that Buyer has notified the other party (or its Subsidiary), which indemnification shall be separate from and not subject Sellers pursuant to the limitations set forth first sentence of Section 2.7(b) that it desires to assume in Section 9.7.
(b) part. If Seller and when such consents or any Retained Subsidiariesapprovals are obtained or such other required actions have been taken, on the one hand, or Buyer or any partial assignment of its Subsidiaries, on the other hand, receives any benefit or payment which under any such Non-Assignable Shared Contract was intended for will be effected in accordance with the other, Seller 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 partyterms of this Agreement.
(c) Notwithstanding anything to the contrary herein, the parties agree that the Shared Contracts listed on Schedule Section 5.21(c)(i) shall not be deemed to be Rolling Mill Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties agree to cooperate and use reasonable best efforts prior to the Closing (with no obligation on the part of either party to pay any costs or fees with respect to such assistance) to effect the separation of such Shared Contracts. If such Shared Contracts are not separated at Closing, the parties agree to continue to provide each other with reasonable cooperation and assistance in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared Contracts.
Appears in 1 contract
Shared Contracts. (a) With respect Each Shared Contract that, pursuant to its terms, permits the assignment to Purchaser of only those rights of Seller or its Subsidiary under such Shared Contractual Liabilities pursuant toContract related to the OrthoRecon Products or the Business without the consent of the counterparty thereto or other conditions, including conditions requiring the payment of any transfer or other fee (the “Assignable Shared Contracts”), shall be deemed to be an Assumed Contract hereunder and Seller shall cause to be assigned to Purchaser, as of the Closing, Seller’s or its Subsidiaries’ respective rights under or relating to a given such Assignable Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, be allocated between Seller and Buyer (the extent related to the OrthoRecon Products or the CompanyBusiness, in accordance with its terms. Seller shall use commercially reasonable efforts prior to the Closing to cause the counterparty to each Shared Contract that is not an Assignable Shared Contract (the “Non-Assignable Shared Contracts”) to consent to the assignment to Purchaser of such Non-Assignable Shared Contract or partial assignment of those rights of Seller or its Subsidiary under such Non-Assignable Shared Contract related to the OrthoRecon Products or the Business, or to otherwise reasonably cooperate with Purchaser in Purchaser’s efforts to enter into a new Contract with such counterparty on substantially the same terms as applicable) exist under such Non-Assignable Shared Contract, in each case as follows:
(i) If a Liability or obligation is incurred exclusively in respect of the Rolling Mill Business Closing. The portion related to the OrthoRecon Products or the Excluded BusinessesBusiness of each such Non-Assignable Shared Contract for which the Parties have received consent to the entire or partial assignment shall thereafter be deemed to be an Assumed Contract hereunder and, if applicable, Seller shall wholly assign, or partially assign, such Liability or obligation shall be allocated portion to Buyer (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Buyer, as the case may be, based on the relative proportions of total benefit received (over the term of the Shared Contract remaining Purchaser as of the Closing Date, measured as of the date of the allocation) by the Rolling Mill Business or the Excluded Business under the relevant such Non-Assignable Shared Contract in accordance with its terms. Purchaser and Seller understand and agree that with respect to any Shared Contract. Notwithstanding , Seller may require transition services from Purchaser to provide it with the foregoing, each rights and benefits of Seller and Buyer shall be responsible for any or all Liability or obligation arising from its (or its Subsidiary’s) breach of the relevant such Shared Contract to which this Section 5.21 otherwise pertains; providedthe extent such contract relates to the Retained Business, however, that each of and Purchaser agrees to provide such services to Seller in the manner set forth in (and Buyer shall be entitled to indemnification from the other for the portion of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.7terms and conditions of) the Transition Services Agreement.
(b) If Seller or any Retained Subsidiaries, on the one hand, or Buyer or any of its Subsidiaries, on the other hand, receives any benefit or payment which under any Any Shared Contract was intended that is a Non-Assignable Shared Contract for which the other, Seller 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.
(carrangements described in Section 1.8(a) Notwithstanding anything to the contrary herein, the parties agree that the Shared Contracts listed on Schedule Section 5.21(c)(i) shall could not be deemed to be Rolling Mill Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated entered into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties agree to cooperate and use reasonable best efforts prior to the Closing (with no obligation on the part of either party shall be a Non-Transferable Asset subject to pay any costs or fees with respect to such assistance) to effect the separation of such Shared Contracts. If such Shared Contracts are not separated at Closing, the parties agree to continue to provide each other with reasonable cooperation and assistance in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared ContractsSection 1.9.
Appears in 1 contract
Sources: Asset Purchase Agreement (Wright Medical Group Inc)
Shared Contracts. (a) With respect From and after the Closing Date and for so long as the Transition Services Agreement remains in effect, Seller shall, and shall cause its Affiliates to use commercially reasonable efforts to cause the counterparty to any Shared Contractual Liabilities pursuant toContract that is not a Transferred Contract to enter into a new agreement, under or relating to a given on substantially the same terms and conditions as those set forth in the Shared Contract, with Buyer or one of its Affiliates with respect to the matters addressed by such Shared Contractual Liabilities shall, unless otherwise allocated pursuant Contract that are related to this Agreement or an Ancillary Agreement, be allocated between Seller and Buyer (or the Company, as applicable) as follows:
(i) If a Liability or obligation is incurred exclusively in respect of the Rolling Mill Business or the Excluded Businesses, such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Buyer, as the case may be, based on the relative proportions of total benefit received (over the term of the Shared Contract remaining as of the Closing Date, measured as of the date of the allocation) by the Rolling Mill Business or the Excluded Business under the relevant Shared Contract. Notwithstanding the foregoing, each of Seller and Buyer shall be responsible for any or all Liability or obligation arising from its (or its Subsidiary’s) breach of the relevant Shared Contract to which this Section 5.21 otherwise pertains; provided, howeverthat Seller shall not be required to compromise any right, that each of Seller and Buyer shall be entitled to indemnification from the asset or benefit or expend any amount or incur any Liabilities or provide any other for the portion of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth consideration in Section 9.7connection therewith.
(b) If Seller or any Retained SubsidiariesFrom and after the Closing Date and for so long as the Transition Services Agreement remains in effect, on Buyer shall, and shall cause its Affiliates to use commercially reasonable efforts to cause the one hand, or Buyer or any of its Subsidiaries, on the other hand, receives any benefit or payment which under counterparty to any Shared Contract was intended for that is identified on Section 7.5(b) of the otherBusiness Disclosure Schedule to enter into a new agreement, on substantially the same terms and conditions as those set forth in the Shared Contract, with Seller and or its Affiliates with respect to the matters addressed by such Shared Contract that are not related to the Business; provided, that Buyer will use their respective reasonable best efforts toshall not be required to compromise any right, and to cause their respective Subsidiaries to, deliver such asset or benefit or payment to the expend any amount or incur any Liabilities or provide any other partyconsideration in connection therewith.
(c) Notwithstanding anything With respect to any Shared Contract that is not a Transferred Contract, until such time as Buyer or one of its Affiliates enters into a new agreement with the counterparty to the contrary hereinShared Contract pursuant to Section 7.5(a), Seller shall use Consent Efforts, with Buyer’s cooperation, to implement a mutually agreeable arrangement by which Buyer or one of its Affiliates would, in compliance with Applicable Law, be able to obtain all of the benefits and assume the obligations and bear the economic burdens associated with such Shared Contract to the extent related to the Business. Such arrangement may include (A) provision of transition services under the Transition Services Agreement, or subcontracting, sublicensing or subleasing by Seller or one of its Affiliates to Buyer, or (B) having Seller or one of its Affiliates enforce, for the benefit (and at the expense) of Buyer or one of its Affiliates any and all of their respective rights against any non-affiliated third party associated with such Shared Contract to the extent related to the Business, in which case Seller would promptly pay, or cause its Affiliates to pay, to Buyer or one of its Affiliates when received all monies received by Seller or its Affiliates in connection with any such Shared Contract to the extent related to the Business. For the avoidance of doubt, the parties agree that the Shared Contracts listed on Schedule alternative arrangements contemplated in clauses (A) and (B) of this Section 5.21(c)(i7.5(c) shall not be deemed made available for the term of the applicable Shared Contract and charged at no additional cost to be Rolling Mill Assets hereunder and are Excluded Assets (Buyer other than the “Excluded those costs arising under such Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties agree to cooperate and use reasonable best efforts prior to the Closing (with no obligation on the part of either party to pay any costs or fees Contract with respect to the Business that are passed through to Buyer. The costs of obtaining any Third-Party Consents in connection with the arrangements contemplated in this Section 7.5(c) shall be allocated as described in Section 7.4(b)(i); it being understood that neither Party shall be required to expend any amount in order to obtain any such assistance) to effect the separation Third-Party Consent in excess of such Shared Contracts. If such Shared Contracts are not separated at Closing, the parties agree to continue to provide each other with reasonable cooperation and assistance in effecting the separation Party’s share of such Shared Contracts and shall treat the same costs as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared Contractsprovided in Section 7.4(b)(i).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Hartford Financial Services Group Inc/De)
Shared Contracts. (a) Within ten (10) days after the execution of this Agreement, Allscripts Healthcare shall provide Buyer with a list indicating which of the Business Shared Contracts may be split and assigned in part to Buyer or replicated for the benefit of Buyer pursuant to its terms, without the consent of the counterparty thereto or other conditions, including the payment of a transfer or other fee (the “Assignable Shared Contracts”). Each Assignable Shared Contract shall thereafter be deemed (to the extent of the split or replication with respect to the portion of such Non-Assignable Shared Contract that relates to the EPSi Business) to be an Assigned Contract hereunder and Sellers shall split and partially assign (or cause to be split and partially assigned) to Buyer, or have or cause to be replicated, for the benefit of Buyer as of the Closing Date such Contract in accordance with its terms.
(b) With respect to each Business Shared Contractual Liabilities pursuant toContract that is not an Assignable Shared Contract (the “Non-Assignable Shared Contracts”), under each Party shall use commercially reasonable efforts to cause the counterparty to each such Non-Assignable Shared Contract to consent to the split and partial assignment or relating to a given replication of such Non-Assignable Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, be allocated between Seller and Buyer (or the Company, as applicable) as follows:
(i) If a Liability or obligation is incurred exclusively in respect of the Rolling Mill Business or the Excluded Businesses, such Liability or obligation shall be allocated Contract to Buyer (in with respect to the portion of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Buyer, as the case may be, based on the relative proportions of total benefit received (over the term of the Non-Assignable Shared Contract remaining that relates to the EPSi Business), or to otherwise enter into a new Contract with Buyer on substantially the same terms as exist under the applicable Business Shared Contract as of the Closing Date. Each such Non-Assignable Shared Contract for which the Parties have received consent to the split and partial assignment or replication shall thereafter be deemed (to the extent of the split or replication with respect to the portion of such Non-Assignable Shared Contract that relates to the EPSi Business) to be an Assigned Contract hereunder and the applicable Seller shall split and partially assign (or cause to be split and partially assigned) to Buyer, measured or have or cause to be replicated, as of the date of the allocation) by the Rolling Mill Business or the Excluded Business under the relevant Shared ContractClosing Date such Contract in accordance with its terms. Notwithstanding the foregoing, each Sellers and their Affiliates shall not be required to split and partially assign to Buyer or have replicated any of Seller the Non-Assignable Shared Contracts for which consent has not been obtained. To the extent any counterparty under a Non-Assignable Shared Contract requires the payment of a transfer or other fee for the split and partial assignment or replication of such Shared Contract, Allscripts Healthcare and Buyer shall be responsible for each pay one half of any such fee that is reasonably required. With respect to any Non-Assignable Shared Contract, until the earlier of (i) the date that such Non-Assignable Shared Contract becomes an Assigned Contract pursuant to this Section 7.8(b) and (ii) the then-remaining term of such Non-Assignable Shared Contract, (A) Sellers and their Affiliates shall pay to Buyer, on a monthly basis, the amount set forth on Schedule 4.7(d)(ii) with respect to such Non-Assignable Shared Contract with respect to the EPSi Business and (B) Buyer agrees to, or all Liability or obligation arising from to cause its (or its Subsidiary’s) breach of the relevant Affiliates to, perform under such Non-Assignable Shared Contract to which this Section 5.21 otherwise pertains; provided, however, that each of Seller and Buyer shall be entitled to indemnification from the other for the portion of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject extent related to the limitations EPSi Business and to the extent required to be performed after the Closing, in each case in accordance with its terms. For clarity, the obligation set forth in Section 9.7.
(b) If Seller the immediately preceding sentence shall not be subject to any deductible or any Retained Subsidiariescap, on notwithstanding the one hand, or Buyer or any provisions of its Subsidiaries, on the other hand, receives any benefit or payment which under any Shared Contract was intended for the other, Seller 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.Article X.
(c) Notwithstanding anything As to any Non-Assignable Shared Contract for which the contrary hereinParties have not received consent, the parties agree that the Shared Contracts listed on Schedule Section 5.21(c)(i) shall not be deemed to be Rolling Mill Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties Parties agree to cooperate in good faith to take such actions as are reasonably necessary to avoid any breach or violation by a Party as a result of any failure to obtain any required consent. Until any such consent or new Contract is obtained, such Non-Assignable Shared Contract shall be subject to Section 7.8(b). If and use reasonable best efforts prior to when such consents or approvals are obtained or such other required actions have been taken, the Closing (with no obligation on the part of either party to pay any costs split and partial assignment, or fees with respect to such assistance) to effect the separation replication, of such Non-Assignable Shared Contracts. If such Shared Contracts are not separated at Closing, the parties agree to continue to provide each other Contract will be effected in accordance with reasonable cooperation and assistance in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared ContractsSection 7.13(b).
Appears in 1 contract
Sources: Asset Purchase Agreement (Allscripts Healthcare Solutions, Inc.)
Shared Contracts. (a) With respect to Shared Contractual Liabilities pursuant From the date of this Agreement until the Closing, the parties hereto shall, and shall cause their respective Affiliates to, use reasonable efforts to work together (and, if necessary and desirable, to work with the third party or third parties to any Shared Contract) in an effort to divide, partially assign, modify or replicate (in whole or in part) the respective rights and obligations under or relating to a given and in respect of any Shared Contract, such Shared Contractual Liabilities shallthat, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, be allocated between Seller and Buyer (or the Company, as applicable) as follows:
(i) If a Liability or obligation is incurred exclusively in respect of the Rolling Mill Business or the Excluded Businesses, such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Buyer, as the case may be, based on the relative proportions of total benefit received (over the term of the Shared Contract remaining effective as of the Closing Date, measured as (i) Buyer is the beneficiary of the date rights, and is responsible for the obligations, related to the portion of such Shared Contract relating to the Business (the “Buyer Portion”), and (ii) Seller or a Seller Affiliate is the beneficiary of the allocationrights, and is responsible for the obligations, related to the portion of such Shared Contract not relating to the Business (the “Seller Portion”). In undertaking these efforts, (x) neither Seller nor any Seller Affiliates shall be required to pay any transfer or other fee, incur any Liability or offer any concession to split, assign or replicate any Shared Contract, (y) neither Buyer nor any Buyer Affiliates shall be required to accept terms and conditions that are less favorable to Buyer and Buyer Affiliates than the terms and conditions of the applicable Shared Contract then in force, or to assume any Liabilities of the Seller Portion under any Shared Contract, and (z) neither Buyer nor any Buyer Affiliate shall be required to commit to a term under any Shared Contract that is longer than the then-current renewal term of such Shared Contract and, if requested by ▇▇▇▇▇, Seller will cooperate with Buyer in the Rolling Mill Business earlier termination of the Buyer Portion of the Shared Contract (in which case any early termination fees or other expenses will be borne by Buyer). Without limiting the Excluded Business generality of the foregoing in this Section 7.14(a), following termination or expiration of the applicable service period for the applicable services under the relevant Shared Contract. Notwithstanding the foregoingTransition Services Agreement, each of upon Buyer’s reasonable written request, Seller shall use reasonable efforts, and Buyer shall be responsible for reasonably cooperate with Seller, to cause the applicable counterparties to any or all Liability or obligation arising from its (or its Subsidiary’s) breach of the relevant Shared Contract to which this Section 5.21 otherwise pertainsrelease Buyer and its Affiliates from all obligations comprising the Buyer Portion of such Shared Contract; provided, however, that each of Seller and (A) Buyer shall be entitled solely responsible for, and shall bear, all costs, expenses and fees incurred in connection with obtaining any such release, (B) Buyer shall reimburse Seller and its Affiliates for any costs and expenses that are incurred by Seller or any of its Affiliates and paid to indemnification the counterparties under such Shared Contract with respect to the Buyer Portion thereof prior to, at or after the Closing, in each case, to the extent the benefit of such payment(s) inures to Buyer or any of its Affiliates (including the Acquired Seller Party) from and after the other Closing, and (C) for the portion avoidance of doubt, nothing in this Section 7.14(a) shall require Seller or any of its Affiliates to pay any transfer or other fee, incur any Liability or obligation arising from offer any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject concession in connection with such release except to the limitations set forth extent Buyer has agreed in Section 9.7advance in writing to bear and promptly reimburse Seller for the same.
(b) If Seller the parties hereto or their respective Affiliates are not able to enter into an arrangement to divide, partially assign, modify or replicate (in whole or in part) the rights and obligations under and in respect of any Retained Subsidiariessuch Shared Contract as contemplated by Section 7.14(a) prior to the Closing, then, subject to the additional terms of this Section 7.14(b), the Closing shall nonetheless take place on the one handterms set forth herein and, thereafter, until the earlier of the expiration or Buyer or any termination of its Subsidiaries, on the other hand, receives any benefit or payment which under any such Shared Contract was intended for in accordance with its terms and the otherdate on which the division, partial assignment, modification or replication of such Shared Contract as contemplated by Section 7.14(a) is effected, (i) Buyer and Seller and Buyer will use their respective reasonable best efforts toshall, and to shall cause their respective Subsidiaries Affiliates to, deliver such benefit or payment use their commercially reasonable efforts to the other party.
(c) Notwithstanding anything obtain any required Consents and enter into any necessary agreements to the contrary herein, the parties agree that the Shared Contracts listed on Schedule Section 5.21(c)(i) shall not be deemed to be Rolling Mill Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting effectuate the foregoing, and the parties have determined that it is advisable that certain Shared Contractswill cooperate in such endeavors, which are identified on Schedule Section 5.21(c)(ii)(ii) Buyer and Seller shall, be separated into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties agree shall cause their respective Affiliates to, use their commercially reasonable efforts to cooperate (each at its own expense) in any lawful, contractually permissible and use commercially reasonable best efforts prior to arrangement under which, following the Closing Closing, Buyer shall receive the interest in the benefits of the Buyer Portion under such Shared Contract and Seller or a Seller Affiliate (with no obligation on other than the part Acquired Seller Party) shall receive the interest in the benefits of either party to pay the Seller Portion under such Shared Contract, (iii) Buyer shall perform all obligations under any costs Buyer Portion of a Shared Contract and (iv) Seller shall or fees with respect to such assistanceshall cause a Seller Affiliate (other than the Acquired Seller Party) to effect the separation perform all obligations under any Seller Portion of such a Shared Contracts. If such Shared Contracts are not separated at Closing, the parties agree to continue to provide each other with reasonable cooperation and assistance in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared ContractsContract.
Appears in 1 contract
Sources: Asset Purchase Agreement (EDGEWELL PERSONAL CARE Co)
Shared Contracts. (a) With respect to Schedule 1.7(a) sets forth a list of all Shared Contractual Liabilities pursuant to, under or relating to a given Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, be allocated between Seller and Buyer (or the Company, as applicable) as follows:
(i) If a Liability or obligation is incurred exclusively in respect of the Rolling Mill Business or the Excluded Businesses, such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Buyer, as the case may be, based on the relative proportions of total benefit received (over the term of the Shared Contract remaining as of the Closing Date, measured as of the date of the allocation) by the Rolling Mill Business or the Excluded Business under the relevant Shared Contract. Notwithstanding the foregoing, each of Seller and Buyer shall be responsible for any or all Liability or obligation arising from its (or its Subsidiary’s) breach of the relevant Shared Contract to which this Section 5.21 otherwise pertains; provided, however, that each of Seller and Buyer shall be entitled to indemnification from the other for the portion of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.7Contracts.
(b) If Seller shall use its commercially reasonable efforts prior to the Closing to cause the counterparty to (i) each Shared Contract listed on Schedule 1.7(b) (each, a “Required Shared Contract”) and (ii) each other Shared Contract that is not a Required Shared Contract that Buyer identifies as a Shared Contract that Buyer desires to assume in part or with respect to which Buyer desires to enter into a Replacement Contract (A) in writing to Seller within thirty (30) days after the date hereof (the “Shared Contract Election Date”) or (B) on Schedule 3.3(b)(v) (each an “Identified Shared Contract”), to consent to a partial assignment to Buyer or one or more of its Subsidiaries that is not subject to termination by the Seller or any Retained Subsidiariesits Subsidiaries of such portions of such Required Shared Contract or Identified Shared Contract that are exclusive to the Business (each such assignment, on the one handa “Partial Shared Contract Assignment”), or Buyer or any of its Subsidiaries, on the other hand, receives any benefit or payment which under any to otherwise enter into a Replacement Contract for such Required Shared Contract was intended for or Identified Shared Contract, in each case as of the otherClosing, Seller and Buyer will shall use their respective its commercially reasonable best efforts to, and to cause their respective Subsidiaries to, deliver such benefit or payment cooperate with Seller with regard to the other partyforegoing.
(c) Notwithstanding anything to the contrary herein, if a counterparty to any Required Shared Contract or Identified Shared Contract at any time conditions its grant of a consent (including by threatening to exercise a “recapture” or other termination right) upon, conditions its agreement to enter into a Replacement Contract upon, or otherwise requires in response to a notice or consent request regarding this Agreement the parties agree that payment of a Transfer Fee, (i) Seller shall be responsible for the payment of any such Transfer Fee for (A) any Partial Shared Contracts listed on Schedule Section 5.21(c)(iContract Assignment and (B) any Replacement Contract for a Required Shared Contract and (ii) the Parties shall share equally in the payment of any Transfer Fee for any Replacement Contract for an Identified Shared Contract that, as of the date of this Agreement, does not apply solely to the Business, and the terms of such Transfer Fee referenced in this clause (ii) shall be subject to both Buyer’s and Seller’s approval, in each case not to be unreasonably withheld. Seller shall, or shall cause one or more of its Subsidiaries, as applicable, to consummate each (i) Partial Shared Contract Assignment and (ii) Replacement Contract for a Required Shared Contract. Any condition to closing related to a Required Shared Contract for which there is a Replacement Contract for such Required Shared Contract shall be deemed to be Rolling Mill Assets hereunder waived by Buyer.
(d) With respect to each Required Shared Contract and are Excluded Assets each Identified Shared Contract, until the earlier of (i) the “Excluded date that is twelve (12) months after the Closing Date and (ii) the date such Required Shared Contracts”)Contract or Identified Shared Contract is acquired by Buyer or its Subsidiary through a Partial Shared Contract Assignment or a Replacement Contract, Seller shall not, and shall not permit any of its Subsidiaries to, take any action to terminate prior to its expiration such Required Shared Contract or Identified Shared Contract, or take any action or fail to take any action that would permit the other party to any such Required Shared Contract or Identified Shared Contract to terminate prior to its expiration such Required Shared Contract or Identified Shared Contract; provided that Seller or any of its Subsidiaries, as applicable, shall be able to terminate such Required Shared Contract or Identified Shared Contract pursuant to the terms of such Required Shared Contract or Identified Shared Contract in the event of a material breach by any counterparty thereto. Without limiting Seller shall promptly notify Buyer of any circumstances which could reasonably be expected to result in any such termination. Notwithstanding the foregoing, Seller shall not be required to partially assign to Buyer or any of its Subsidiaries any of the parties have determined that it is advisable that certain Shared Contracts, Contracts for which are identified on Schedule consent has not been obtained.
(e) With respect to each Required Shared Contract or Identified Shared Contract for which the arrangements described in Section 5.21(c)(ii), 1.7(b) could not be separated entered into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties agree to cooperate and use reasonable best efforts prior to the Closing Date, Seller agrees to continue to use its commercially reasonable efforts for a period of six (6) months from and after the Closing Date to cause the counterparty to each such Required Shared Contract or Identified Shared Contract to consent to a Partial Shared Contract Assignment of such Required Shared Contract or Identified Shared Contract to Buyer or one or more of its Subsidiaries, or to otherwise enter into a Replacement Contract for such Required Shared Contract or Identified Shared Contract. Until any such consent or Replacement Contract is obtained, Seller and Buyer will use their respective commercially reasonable efforts to cooperate in any lawful and reasonable arrangement which will provide Buyer and its Subsidiaries the obligations and benefits of any such Required Shared Contract or Identified Shared Contract with no obligation on respect to the part Business, including subcontracting, licensing, sublicensing, leasing or subleasing to Buyer and its Subsidiaries any or all of either party to pay any costs or fees Seller’s and its Subsidiaries’ rights and obligations with respect to such assistanceRequired Shared Contract or Identified Shared Contract with respect to the Business. With respect to that portion of the Required Shared Contract or Identified Shared Contract that Buyer has notified Seller pursuant to the first sentence of Section 1.7(b) that it desires to effect assume in part, Buyer shall (i) bear the separation sole responsibility for completion of the work or provision of goods and services, (ii) be solely entitled to all benefits thereof, economic or otherwise, (iii) be solely responsible for any warranty or breach thereof, and any repurchase, indemnity and service obligations thereof, and (iv) promptly reimburse the reasonable costs and expenses of Seller and its Affiliates related thereto. If and when such consents or approvals are obtained or such other required actions have been taken, the partial assignment of such Required Shared Contracts. If such Contract or Identified Shared Contracts are not separated at Closing, Contract will be effected in accordance with the parties agree to continue to provide each other with reasonable cooperation and assistance in effecting the separation terms of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared Contractsthis Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Integrated Device Technology Inc)
Shared Contracts. (a) With respect to Except for Shared Contractual Liabilities pursuant Contracts specifically addressed by the services provided under the Transition Services Agreement, Seller shall, and shall cause its Subsidiaries to, under or relating to a given Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, be allocated between Seller and Buyer (or the Companyuse their commercially reasonable efforts to, as applicable) as follows:
reasonably requested by Buyer, (i) If cause the counterparty to any Shared Contract to enter into a Liability or obligation is incurred exclusively new contract with the Group Companies, on terms substantially similar to those applicable to the Business in such Shared Contract including with respect of to pricing, in order for the Rolling Mill Business or to receive the Excluded Businessesapplicable benefits under such Shared Contract (each such new contract, such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill Businessa “New Contract”) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability split the respective rights and obligations under any Shared Contract such that, effective at or obligation cannot be so allocated under clause prior to the Closing (iA) above, such Liability or obligation the Group Companies shall be allocated to Seller or Buyer, as the case may be, based on the relative proportions of total benefit received (over the term assigned beneficiary of the rights under such Shared Contract remaining as of the Closing Date(each such contract, measured as of the date of the allocation) by the Rolling Mill Business or the Excluded Business under the relevant an “Assumed Shared Contract. Notwithstanding ”) to the foregoingextent such rights relate to the Business, each of Seller and Buyer shall be responsible for any or all Liability or obligation arising from its (or its Subsidiary’s) breach of the relevant Liabilities and obligations under such Assumed Shared Contract to which this Section 5.21 otherwise pertains; provided, however, that each the extent such Liabilities and obligations relate to the Business and (B) the relevant Retained Company shall remain the beneficiary of Seller the remaining rights under such Assumed Shared Contract and Buyer shall be entitled to indemnification from the other remain responsible for the portion of any Liability or obligation arising from any breach of the relevant remaining Liabilities and obligations under such Assumed Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.7Contract.
(b) If Seller the Parties are not able, with respect to any such Shared Contract, to obtain a New Contract or any Retained Subsidiaries, on the one hand, or Buyer or any of its Subsidiaries, on the other hand, receives any benefit or payment which under any to so assign such Shared Contract was intended prior to the Closing, except for Shared Contracts specifically addressed by the otherservices provided under the Transition Services Agreement, then (x) for a period of twelve (12) months following the Closing, Seller, Buyer and their respective Affiliates shall continue to use commercially reasonable efforts to cause such counterparty to enter into a New Contract or assign to the Group Companies the benefits and obligations under such Shared Contract as they relate to the Business, and (y) until the earlier of either (A) twenty-four (24) months after the Closing or (B) such time as a New Contract is executed or a Shared Contract is so assigned, Seller and Buyer will shall use their respective reasonable best efforts to, and to shall cause their respective Subsidiaries to, deliver such benefit or payment Affiliates to use commercially reasonable efforts to secure an alternative arrangement reasonably satisfactory to the other party.
(c) Notwithstanding anything to parties under which the contrary hereinBusiness would, in compliance with applicable Law, obtain the parties agree benefits and bear the burdens associated with the applicable Shared Contract such that the Shared Contracts listed on Schedule Section 5.21(c)(i) shall not Business would be deemed to be Rolling Mill Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties agree to cooperate and use reasonable best efforts prior to the Closing (with no obligation on the part of either party to pay any costs or fees with respect to such assistance) to effect the separation of such Shared Contracts. If such Shared Contracts are not separated at Closing, the parties agree to continue to provide each other with reasonable cooperation and assistance placed in effecting the separation of such Shared Contracts and shall treat the same a substantially similar position as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared Contractsif a New Contract were executed.
Appears in 1 contract
Shared Contracts. (a) With respect to Shared Contractual Liabilities pursuant to, under or relating to a given Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or an Ancillary a Related Agreement, be allocated between Seller TDY and Buyer (or the Company, as applicable) as follows:
(i) If a Liability or obligation is incurred exclusively in respect of the Rolling Mill Tungsten Materials Business or the Excluded Businesses, such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill Tungsten Materials Business) or Seller TDY (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller TDY or Buyer, as the case may be, based on the relative proportions of total benefit received (over the term of the Shared Contract remaining as of the Closing Date, measured as of the date of the allocation) by the Rolling Mill Tungsten Materials Business or the Excluded Business under the relevant Shared Contract. Notwithstanding the foregoing, each of Seller TDY and Buyer shall be responsible for any or all Liability or obligation Liabilities arising from its (or its Subsidiary’s's) breach of the relevant Shared Contract to which this Section 5.21 5.17 otherwise pertains; provided, however, that each of Seller TDY and Buyer shall be entitled to indemnification from the other for the portion of any Liability or obligation Liabilities arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.78.4.
(b) If Seller TDY or any Retained SubsidiariesSubsidiary, on the one hand, or Buyer or any of its Subsidiaries, on the other hand, receives any benefit or payment which under any Shared Contract was intended for the other, Seller TDY 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 5.17(c)(i) of the Seller's Disclosure Schedule Section 5.21(c)(i) shall not be deemed to be Rolling Mill Tungsten Materials Assets hereunder and are Excluded Assets (the “"Excluded Shared Contracts”"). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii)5.17(c)(ii) of the Seller's Disclosure Schedule, be separated into separate Contracts between the appropriate Third Party third party and either the Excluded Businesses or the Rolling Mill Tungsten Materials Business. The parties agree to cooperate and use provide reasonable best efforts 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) to effect in effecting the separation of such Shared Contracts. If such Shared Contracts are not separated at Closing, the parties agree to continue to provide each other with reasonable cooperation and assistance in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared Contracts.
Appears in 1 contract
Sources: Purchase Agreement (Kennametal Inc)
Shared Contracts. (a) Within thirty (30) days after the execution of this Agreement, the Seller shall provide the Purchaser with a list of all material Shared Contracts, indicating which of such material Shared Contracts may be assigned in part, pursuant to its terms, without the consent of the counterparty thereto or other conditions, including the payment of a transfer or other fee (the “Assignable Shared Contracts”). Within thirty (30) days after receipt thereof, the Purchaser will provide the Seller with written notice of those Assignable Shared Contracts that the Purchaser desires to assume in part. Each such Assignable Shared Contract for which the Purchaser provides written notice of its desire to assume in part shall thereafter be deemed to be an Assumed Contract hereunder and the Seller shall partially assign to the Purchaser as of the Initial Closing such Contract in accordance with its terms.
(b) With respect to each material Shared Contractual Liabilities Contract identified pursuant toto the first sentence of subsection (a) above that is not an Assignable Shared Contract (the “Non-Assignable Shared Contracts”), the Purchaser will also, within thirty (30) days after receipt thereof, provide the Seller with written notice of those Non-Assignable Shared Contracts that the Purchaser desires to assume in part. Each party shall use its Reasonable Efforts prior to the Initial Closing Date to cause the counterparty to each such Non-Assignable Shared Contract to consent to the partial assignment of such Non-Assignable Shared Contract to the Purchaser, or to otherwise enter into a new Contract with the Purchaser on substantially the same terms as exist under or relating to a given the applicable Shared Contract, in each case as of the Initial Closing. Each such Non-Assignable Shared Contractual Liabilities shall, unless otherwise allocated Contract for which the parties have received consent to the partial assignment shall thereafter be deemed to be an Assumed Contract hereunder and the Seller shall partially assign to the Purchaser as of the Initial Closing such Contract in accordance with its terms. The Seller shall not take any action to terminate prior to its expiration any Non-Assignable Shared Contract that is a Material Contract and which has been identified by the Purchaser as one it desires to assume pursuant to this Agreement subsection (b), or an Ancillary Agreement, be allocated between Seller and Buyer (take any action or fail to take any action that would permit the Company, as applicable) as follows:
(i) If a Liability or obligation is incurred exclusively in respect of the Rolling Mill Business or the Excluded Businesses, other party to any such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Buyer, as the case may be, based on the relative proportions of total benefit received (over the term of the Non-Assignable Shared Contract remaining as of to terminate prior to its expiration such Shared Contract, in each case, prior to the date that is twelve (12) months after the Initial Closing Date, measured as of the date of the allocation) by the Rolling Mill Business or the Excluded Business under the relevant Shared Contract. Notwithstanding the foregoing, the Seller shall not be required to partially assign to the Purchaser at the Initial Closing any of the Non-Assignable Shared Contracts for which consent has not been obtained.
(c) With respect to each Non-Assignable Shared Contract for which the arrangements described in Section 10.7(b) could not be entered into prior to the Initial Closing Date the Seller agrees to continue to use Reasonable Efforts from and after the Initial Closing Date until the date that is twelve (12) months following the Initial Closing Date to cause the counterparty to each such Non-Assignable Shared Contract to consent to the partial assignment of such Non-Assignable Shared Contract to the Purchaser, or to otherwise enter into a new Contract with the Purchaser on substantially the same terms as exist under the applicable Shared Contract. Until any such consent or new Contract is obtained, the Seller and Buyer shall be responsible the Purchaser will use Reasonable Efforts to cooperate for twelve (12) months following the Initial Closing, in any lawful and reasonable arrangement, to the extent such cooperation would not result in a breach of the terms of such Non-Assignable Shared Contract, and not prohibited under applicable law, which will provide the Purchaser Group the obligations and benefits of any such Non-Assignable Shared Contract with respect to the Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the Purchaser Group any or all Liability or obligation arising from its (or its Subsidiary’s) breach of the relevant Seller Group’s rights and obligations with respect to such Non-Assignable Shared Contract with respect to which this Section 5.21 otherwise pertainsthe Business; provided, however, that each with respect to the Contracts identified on Schedule 10.7(c) of the Seller Disclosure Schedule, the Seller and Buyer shall the Purchaser will use Reasonable Efforts to cooperate until the earlier of two (2) years following the Initial Closing or the expiration of the remaining term of such Contract. In any such arrangement, the Purchaser will (i) bear the sole responsibility for completion of the work or provision of goods and services, (ii) bear all Taxes with respect thereto or arising therefrom, (iii) be solely entitled to indemnification from all benefits thereof, economic or otherwise, (iv) be solely responsible for any warranty or breach thereof, any repurchase, indemnity and service obligations thereof and any damages related to termination of such Non-Assignable Shared Contracts, and (v) promptly reimburse the other for the portion of any Liability or obligation arising from any breach reasonable costs and expenses of the relevant Seller and its Affiliates related thereto. If and when such consents or approvals are obtained or such other required actions have been taken, the partial assignment of such Non-Assignable Shared Contract by will be effected in accordance with the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.7terms of this Agreement.
(bd) If The Seller or any Retained Subsidiaries, and the Purchaser each agree that “Reasonable Efforts” for purposes of this Section 10.7 includes an obligation on the one handPurchaser to provide financial information, or Buyer or subject to receipt from the counterparty to a Shared Contract of an executed confidentiality agreement, and the Purchaser agrees to, and agrees to cause any of its Subsidiaries, on the other hand, receives any benefit or payment which under any Shared Contract was intended for the other, Seller and Buyer will use their respective reasonable best efforts subsidiaries to, and enter into a guaranty, in each case, as may be reasonably requested by the counterparty to cause their respective Subsidiaries to, deliver such benefit or payment to the other partya Shared Contract.
(c) Notwithstanding anything to the contrary herein, the parties agree that the Shared Contracts listed on Schedule Section 5.21(c)(i) shall not be deemed to be Rolling Mill Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties agree to cooperate and use reasonable best efforts prior to the Closing (with no obligation on the part of either party to pay any costs or fees with respect to such assistance) to effect the separation of such Shared Contracts. If such Shared Contracts are not separated at Closing, the parties agree to continue to provide each other with reasonable cooperation and assistance in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared Contracts.
Appears in 1 contract
Shared Contracts. (a) With respect Trinity shall and shall cause its Affiliates to Shared Contractual Liabilities pursuant to, under or relating use their best efforts to a given Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, be allocated between Seller and Buyer (or the Company, as applicable) as follows:
(i) If a Liability or obligation is incurred exclusively in respect of the Rolling Mill Business or the Excluded Businesses, such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Buyer, as the case may be, based on the relative proportions of total benefit received (over the term of cause the Shared Contract remaining as of the Closing Date, measured as of the date of the allocation) by the Rolling Mill Business or the Excluded Business under the relevant Shared Contract. Notwithstanding the foregoing, each of Seller and Buyer shall be responsible for any or all Liability or obligation arising from its (or its Subsidiary’s) breach of the relevant Shared Contract to which this Section 5.21 otherwise pertains; provided, however, that each of Seller and Buyer shall be entitled to indemnification from the other for the portion of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations Contracts set forth in Section 9.7.
(b) If Seller or any Retained Subsidiaries, on the one hand, or Buyer or any of its Subsidiaries, on the other hand, receives any benefit or payment which under any Shared Contract was intended for the other, Seller 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 Schedule Section 5.21(c)(i) shall not be deemed to be Rolling Mill Assets hereunder and are Excluded Assets 5.3 (the “Excluded Key Shared Contracts”). Without limiting , with the foregoingexception of the Key Shared Contracts that are specifically denominated therein as being covered directly by Section 6.4(b) below, to be replaced, prior to or on the parties have determined that it is advisable that certain Shared ContractsClosing Date with two separate contracts, which are identified on Schedule Section 5.21(c)(iishall (x) respectively, deal exclusively with the Business (the “Business Replacement Contract”), be separated into separate and all business other than the Business (the “Other Replacement Contract”), and (y) have substantially the same terms as the Key Shared Contracts between the appropriate Third Party being replaced. Stago shall and either the Excluded Businesses or the Rolling Mill Business. The parties agree shall cause its Affiliates to cooperate and use provide Trinity with all reasonable best efforts assistance in effecting such separation of the Key Shared Contracts prior to the Closing (with no obligation on the part of either party the Purchaser Group to pay any third party costs or fees with respect to such assistance). Stago shall be afforded with an opportunity to participate in the relevant negotiations and to approve the replacement contracts (such approval not to be unreasonably withheld or delayed).
(b) In the event that any such Key Shared Contract is replaced in accordance with subsection (a) above prior to effect the separation Closing Date, the Business Replacement Contract shall be deemed to be a Business Contract, while the Other Replacement Contract shall be excluded from the definition of Business Contracts.
(c) If Trinity is not able to separate a Key Shared Contract in accordance with subsection (a) above at or prior to the Closing Date, the Key Shared Contract shall be deemed to be an Excluded Contract if referred to as such Shared Contracts. If in Schedule 5.3 and shall therefore remain with the Seller Group, subject to the relevant members of the Seller Group complying with Section 6.3(b) and 6.3(d) with respect to such contracts, in which case the relevant Business Asset Purchaser shall hold the relevant Business Asset Seller harmless with respect to any obligations arising thereunder that relate to the Business.
(d) All of the other Shared Contracts are not separated at Closingshall be novated, assigned or transferred to the parties agree Purchasers, according to continue the procedure set forth in Section 5.2(f) above, provided that the relevant transferring Business Asset Seller shall hold the relevant Business Asset Purchaser harmless with respect to provide each any obligations arising under a given Shared Contract that relate to any business other with reasonable cooperation and assistance in effecting than the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared ContractsBusiness.
Appears in 1 contract
Shared Contracts. (a) With respect to Shared Contractual Liabilities pursuant to, under or relating to a given Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, be allocated between Seller the Vitro Entities, on the one hand, and Buyer (or the CompanyAcquired Companies, as applicable) as follows:
(i) If a Liability or obligation is incurred exclusively in respect of on the Rolling Mill Business or the Excluded Businesses, such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Buyer, as the case may beother hand, based on the relative proportions of total benefit benefits under the Shared Contract that reasonably can be expected to be received (measured from the date of allocation over the remaining term of the Shared Contract remaining as of the Closing Date, measured as of the date of the allocationContract) by the Rolling Mill Business or Vitro Entities, on the Excluded Business under one hand, and the relevant Shared ContractAcquired Companies, on the other hand. Notwithstanding the foregoing, each of Seller Sellers and Buyer the Acquired Companies shall be responsible for any and all Liabilities arising out of or all Liability or obligation arising resulting from its their (or its Subsidiary’stheir respective Affiliates') breach of the relevant Shared Contract to which this Section 5.21 5.08 otherwise pertains; provided, however, except that each 51% of Seller and Buyer shall be entitled to indemnification any Liabilities arising out of or resulting from the other for breach, prior to the portion of any Liability or obligation arising from any breach Closing Date, by the Acquired Companies of the relevant Shared Contract shall be allocated to Sellers and, solely if all Liabilities required to be disclosed pursuant to any provision of Article III shall in fact have been properly disclosed, 49% of any Liabilities arising out of or resulting from the breach, prior to the Closing Date, by the other party (or its Subsidiary), which indemnification Acquired Companies of the relevant Shared Contract shall be separate from and not subject allocated to the limitations set forth in Section 9.7Purchasers.
(b) If Seller or any Retained Subsidiaries, on the one hand, or Buyer or any of its Subsidiaries, on the other hand, receives any benefit or payment which under any Shared Contract was intended for the other, Seller 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 Schedule Section 5.21(c)(i) shall not be deemed to be Rolling Mill Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, the parties The Parties have determined that it is advisable that certain the Shared Contracts set forth in Section 5.08(b) of the Disclosure Schedule ("Mirrored Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), ") be separated into separate Contracts between the appropriate Third Party third party and either the Vitro Entity owning or operating the applicable Excluded Businesses Business or the Rolling Mill Acquired Companies with respect to Business. Each Seller shall hereafter use commercially reasonable efforts to cause the Mirrored Shared Contracts to be replaced with separate Contracts, preferably effective as of Closing, that (i) have substantially the same terms as the Mirrored Shared Contracts being replaced and (ii) provide that the Acquired Companies shall receive such rights and obligations under a replacement Contract as are substantially similar to those Contract rights and obligations utilized in the Business, provided, however, that Sellers give no assurances that any such replacement Contracts will be obtained. The parties agree to Parties shall cooperate and use provide each other with reasonable best efforts assistance in effecting such separation of the Mirrored Shared Contracts prior to the Closing and for a period of six months following the Closing (with no obligation on the part of either party any Party to pay any costs or fees with respect to such assistance). Prior to Closing, Sellers shall have the principal right and obligation to negotiate the separation of Mirrored Shared Contracts with third party vendors, and Purchasers shall participate directly in such negotiations and have the right to approve the replacement Contract to which the Acquired Companies will be a party after separation. From and after Closing and for a period of six months following the Closing, the Acquired Companies shall have the principal right and obligation to negotiate the separation of Mirrored Shared Contracts with third party vendors, and Sellers shall participate directly in such negotiations and have the right to approve the Contract to which Sellers will be a party after separation. Subject to Section 5.12(c), Purchasers shall bear 100% of the costs of the third party vendors' fees or other charges arising from or related to the separation of the Mirrored Shared Contracts from and after the date the Closing until the six-month anniversary of the Closing Date; provided, however, that with respect to the Mirrored Shared Contracts identified on Schedule 5.08(b) as "IT/Software Agreements", Purchasers shall bear all licensing fees arising from or related to separation of such Mirrored Shared Contracts up to $100,000, and Purchasers shall bear 49% and Sellers shall bear 51% of such license fees that exceed $100,000, with Sellers' responsibility limited in the aggregate to $120,000 ("Sellers' Mirrored Shared Contract Fees").
(c) If the Parties are not able to effect the separation of a Mirrored Shared Contract effective as of the Closing, then, until any such Mirrored Shared Contracts. If Contract is separated, to the extent permissible under Law and under the terms of such Mirrored Shared Contracts Contract, each of the Parties shall (i) assume and perform the Liabilities and obligations under such Mirrored Shared Contract relating to its respective business or that of its Affiliates (and shall promptly reimburse the other Parties for any expenses relating thereto incurred by any other Party or its Affiliates), allocated in accordance with Section 5.08(a), (ii) hold in trust for the benefit of the other Parties, and shall promptly forward to the other Parties, any monies or other benefits received pursuant to such Mirrored Shared Contract relating to the respective businesses of the other Parties (or their respective Affiliates) and (iii) endeavor to institute alternative arrangements intended to put the Parties in substantially the same economic and operational position as if such Mirrored Shared Contract were separated; provided, however, that, if the Parties are not separated at Closing, the parties agree able to continue to provide each other with reasonable cooperation and assistance in effecting effect the separation of any Mirrored Shared Contract within six months after the Closing, then Sellers shall have no further obligation to Purchasers, the Acquired Companies or their Affiliates with respect thereto and may freely terminate such Mirrored Shared Contracts Contract; and shall treat provided, further, that any amounts owed by one Party (the same as Shared Contracts or take "Payor Party") to the other Party (the "Payee Party") pursuant to Section 5.08(c)(i) may be satisfied at the Payor Party's option by setting off such reasonable steps as are necessary amounts against any amounts owed to provide each party it from the benefit of such Shared ContractsPayee Party pursuant to Section 5.08(c)(i).
Appears in 1 contract
Sources: Purchase Agreement (Vitro Sa De Cv)
Shared Contracts. The Parties acknowledge and agree that Seller has entered into certain Contracts that are Shared Contracts, as identified on Schedule 5(h). Following the Closing, until the earlier of (i) the termination or expiration of the Shared Contract (to the extent related to the Business) or (ii) Buyer’s entry into a Replacement Buyer Contract as provided below, (a) With Buyer shall cause Target to perform the components of and all other obligations under the Shared Contracts related to the Business, (b) Buyer and Target shall be solely responsible for all services, deliveries, and other obligations related to the Business (provided, that during this period Seller will be responsible for all billing and collection responsibilities under the Shared Contracts, whether or not related to the Business), and (c) Target will be entitled to receive all payments under the Shared Contracts for all services provided by Target with respect to the Business under the Shared Contractual Liabilities pursuant to, under or relating to a given Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, be allocated between Seller and Buyer (or the Company, as applicable) as follows:
(i) If a Liability or obligation is incurred exclusively Contracts in respect of the Rolling Mill periods following the Closing, if and when such payments are received (and twice each month Seller shall remit to Target any such payments received by Seller (on two Business or Days during the Excluded Businessesmonth to be agreed upon by Buyer and Seller)). Seller shall be solely responsible for all other obligations under the Shared Contracts. Seller, Target and Buyer shall use commercially reasonable efforts to cooperate in administering the Shared Contracts. The Shared Contracts, to the extent related to the Business, shall not be renewed by Seller at the end of the then-current terms, provided that there shall be no restrictions on Seller to renew the portion of any Shared Contracts to the extent related to Seller’s businesses (and Target and Buyer shall not be required to be a party to, and in any event Buyer and Target shall have no liability under, such Liability renewal contract by Seller). Seller shall not terminate any Shared Contract or obligation shall be allocated enter into any amendment of a Shared Contract (to Buyer (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, extent such Liability or obligation shall be allocated to Seller or Buyer, as the case may be, based an amendment would have an adverse effect on the relative proportions of total benefit received (over the term portion of the Shared Contract remaining as related to the Business), without Target’s express advance written consent in each instance. If Seller is unable to subcontract the portions of the Closing DateShared Contract related to the Business to Target due to restrictions under the Shared Contract that the counterparty refuses to waive or amend to permit such assignment or subcontracting, measured (i) the Parties shall take such other actions in order to place Target, insofar as reasonably possible and to the maximum extent permitted by applicable Law, in the same position so that all the benefits and burdens relating the portions of the date of Shared Contract related to the allocationBusiness are to inure from and after the Closing to Buyer, (ii) by the Rolling Mill Business or the Excluded Business under the relevant Shared Contract. Notwithstanding the foregoing, each of Seller and Buyer shall otherwise perform and be responsible for any or all Liability or obligation arising from its (or its Subsidiary’s) breach of the relevant Shared Contract to which this Section 5.21 otherwise pertains; provided, however, that each of Seller obligations and Buyer shall be entitled to indemnification from the other for the portion of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.7.
(b) If Seller or any Retained Subsidiaries, on the one hand, or Buyer or any of its Subsidiaries, on the other hand, receives any benefit or payment which under any Shared Contract was intended for the other, Seller 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 Schedule Section 5.21(c)(i) shall not be deemed to be Rolling Mill Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties agree to cooperate and use reasonable best efforts prior to the Closing (with no obligation on the part of either party to pay any costs or fees liabilities solely with respect to such assistanceportions of the Shared Contract, as if the portions of the Shared Contract related to the Business had been subcontracted to Buyer hereunder, and (iii) to effect Seller shall be solely responsible for all other obligations under the separation of such Shared Contracts. If In addition, following the Closing, (i) Buyer and Seller shall cooperate with respect to communications with the counterparty to such Shared Contracts are Contract related to the execution and delivery of this Agreement and the consummation of the Transactions, and neither Buyer, Target nor Seller shall have any communications with any such counterparty regarding this Agreement or the Transactions without the participation of the other Party unless such other Party approves in advance in writing of any such communication (including via e-mail) or as generally consistent with parameters agreed to in writing (including over e-mail) between Buyer and Seller, provided that the foregoing shall not separated at Closingapply to communications by Target or Seller, as applicable, with such counterparty in connection with providing services and deliveries to such counterparty in connection with the parties agree to continue to provide each other with reasonable cooperation and assistance in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such responding to questions in connection therewith or, in the case of Buyer, in connection with any efforts to enter into a Replacement Buyer Contract (which efforts shall be solely controlled by Buyer; provided that promptly after Closing, Buyer shall communicate with Seller regarding Buyer’s approach for obtaining Replacement Buyer Contracts), and (ii) Buyer shall cause Target to use commercially reasonable steps efforts to enter into a new contract and/or short form assignment with respect to the portion of the Shared Contract Related to the Business (a “Replacement Buyer Contract”) in place of each of the Shared Contracts (to the extent related to the Business) within 90 days following the Closing or as are necessary to provide each party the benefit of such Shared Contractssoon as reasonably practicable thereafter, and Seller shall cooperate with Target and Buyer in connection therewith.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Healthstream Inc)
Shared Contracts. (ai) With Notwithstanding anything to the contrary in this Agreement, the Purchased Assets shall include Shared Contract Rights, and the Assumed Liabilities shall include Shared Contract Obligations, in each case only to the extent provided in this Section 2.2(e)(i). Except as provided in the foregoing sentence, all provisions of, and rights and obligations which arise under, Shared Contracts shall be Excluded Assets and Excluded Liabilities. Prior to Closing, Seller shall, in cooperation with Buyer, use its reasonable best efforts to identify Shared Contracts containing Shared Contract Rights and Shared Contract Obligations that, in each case, are required to be provided or performed after the Closing Date (such Shared Contracts, the “Ongoing Shared Contracts”). Each of Seller and Buyer will, in cooperation with the other, use its reasonable best efforts both before and after the Closing to effect the assignment of the Shared Contract Rights and the Shared Contract Obligations to Buyer under the Ongoing Shared Contracts by, among other things, amending the Ongoing Shared Contracts to separately assign the Shared Contract Rights and the Shared Contract Obligations to Buyer and, if necessary or deemed desirable by Seller and Buyer, to execute new contracts with respect thereto; provided, that such reasonable best efforts shall not require the payment of any consideration (monetary or otherwise) to, or the concession or provision of any right to, or the amendment or modification in any manner materially adverse to Buyer or Seller of any Ongoing Shared Contract with, any Third Party and provided further that in no event shall Seller or any of its Affiliates have any obligation to any Third Party or to Buyer with respect to any Shared Contractual Liabilities pursuant toContract Rights or Shared Contract Obligations following the assignment thereof to Buyer for any obligation that is an Assumed Liability. Unless otherwise agreed by Buyer, such amendments and new contracts shall be on pricing terms equal to the terms applicable to the Business under the associated Ongoing Shared Contract and shall otherwise be on terms and conditions (except for any de minimis changes) no less favorable to Buyer than the terms and conditions applicable to the Business under the associated Ongoing Shared Contract. If any Shared Contract Rights are not assigned to Buyer prior to or relating to a given on the Closing Date, unless the parties otherwise agree in writing, during the remaining term of the applicable Ongoing Shared Contract, such Shared Contractual Liabilities shallnot to exceed 12 months, unless otherwise allocated pursuant the parties shall use their respective reasonable best efforts to this Agreement allow Buyer to the extent permitted by applicable Requirements of Law and to the extent reasonably within the contractual or an Ancillary Agreement, be allocated between Seller and Buyer (other ability or the Company, as applicable) as follows:
(i) If a Liability or obligation is incurred exclusively in respect control of the Rolling Mill Business Company or the Excluded Businesses, such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Buyerits Affiliate, as the case may be, based on the relative proportions of total benefit received (over the term of to receive such Shared Contract Rights, subject to the Shared Contract remaining as of the Closing Date, measured as of the date of the allocation) by the Rolling Mill Business or the Excluded Business under the relevant Shared Contract. Notwithstanding the foregoing, each of Seller and Buyer shall be responsible for any or all Liability or obligation arising from its (or its Subsidiary’s) breach of the relevant Shared Contract to which this Section 5.21 otherwise pertainsObligations; provided, however, that each of Seller and Buyer shall be entitled to indemnification from reimburse the other for the portion of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (Company or its Subsidiary), which indemnification shall be separate from applicable Affiliate for any reasonable and not subject to the limitations set forth documented out-of-pocket expenses incurred in Section 9.7connection with any such arrangement.
(b) If Seller or any Retained Subsidiaries, on the one hand, or Buyer or any of its Subsidiaries, on the other hand, receives any benefit or payment which under any Shared Contract was intended for the other, Seller 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 Schedule Section 5.21(c)(i) shall not be deemed to be Rolling Mill Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties agree to cooperate and use reasonable best efforts prior to the Closing (with no obligation on the part of either party to pay any costs or fees with respect to such assistance) to effect the separation of such Shared Contracts. If such Shared Contracts are not separated at Closing, the parties agree to continue to provide each other with reasonable cooperation and assistance in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared Contracts.
Appears in 1 contract
Shared Contracts. (a) With respect to Shared Contractual Liabilities pursuant to, under or relating to a given Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, be allocated between Except as set forth on Section 5.6(a) of the Seller and Buyer (or the CompanyDisclosure Schedule, as applicable) promptly as follows:
practicable after the date hereof, each of the Parties shall use its commercially reasonable efforts to cause each Shared Contract to be split into (i) If a Liability or obligation is incurred separate Contract related exclusively to the TMA Business on terms and conditions consistent in respect all material respects with the terms and conditions of such Shared Contract that apply to the Rolling Mill TMA Business or the Excluded Businesses(unless otherwise agreed in writing by Buyer), such Liability or obligation which separate Contract, subject to Section 5.5, shall be allocated transferred to Buyer with effect as of or as promptly as practicable after the Closing Date (in respect of the Rolling Mill Businessa “Buyer Split Contract”) or Seller (in respect of the Excluded Businesses);
and (ii) If a Liability or obligation cannot be so allocated under clause separate Contract related exclusively to the Seller Retained Businesses on terms and conditions consistent in all material respects with the terms and conditions of such Shared Contract that apply to the Seller Retained Businesses (i) aboveunless otherwise agreed in writing by Seller), such Liability or obligation which shall be allocated to retained by Seller or Buyer, as (a “Seller Split Contract”); provided that in the case may be, based on the relative proportions of total benefit received (over the term of the event that any Shared Contract remaining as of is eligible for renewal after the Closing Date, measured as of the date of the allocation) by the Rolling Mill Business or the Excluded Business under the relevant Shared Contract. Notwithstanding the foregoingClosing, each of the Parties shall use its commercially reasonable efforts to renew such Shared Contract as a Buyer Split Contract and a Seller Split Contract; provided, further, that no Party shall renew any Shared Contract so that such Shared Contract would continue to apply after the Closing to both the TMA Business and the Seller Retained Businesses without the prior written consent of each of Buyer and Seller. As promptly as practicable after the date hereof, Seller and Buyer shall be responsible for any or all Liability or obligation arising from its (or its Subsidiary’s) breach of jointly approach the relevant applicable contractual counterparty to each Shared Contract to which seek its consent to such split and transfer; provided that neither Party will be obligated to pay any amounts or provide other consideration to any such counterparty or agree to other concessions in connection with obtaining or seeking to obtain any such consent and neither Party shall have any liability whatsoever for failure to (x) pay such amounts or consideration, (y) agree to any such concessions or (z) obtain any such consent (provided that this clause (z) shall not relieve any Party from any Liability arising out of or resulting from such Party’s breach of this Section 5.21 otherwise pertains; provided, however, that each of Seller and Buyer shall be entitled to indemnification from the other for the portion of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary5.6(a), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.7).
(b) If Seller or any Retained SubsidiariesEach of the Parties shall use its commercially reasonable efforts to come to a mutually agreeable decision regarding the split of revenue, if any, to be allocated to Buyer, on the one hand, or Buyer or any of its Subsidiariesand the Seller Group, on the other hand, receives any benefit or payment which under any each Shared Contract was intended for in accordance with the other, Seller and Buyer will use their respective reasonable best efforts to, and to cause their respective Subsidiaries to, deliver portion of such benefit or payment Shared Contract that relates to the other partyTMA Business or the Seller Retained Businesses, respectively, and, unless otherwise agreed by the Parties, consistent with the allocation reflected in the Financial Statements; provided that, with respect to the Shared Contracts set forth on Section 5.6(b) of the Seller Disclosure Schedule, such split of revenue shall be allocated in accordance with the allocation set forth on Section 5.6(b) of the Seller Disclosure Schedule.
(c) Notwithstanding anything to From and after the contrary hereinClosing, the parties agree that the if, and as long as, any split of any Shared Contracts listed on Schedule Section 5.21(c)(i) shall Contract cannot be deemed realized:
(i) Seller and its Subsidiaries shall (A) use commercially reasonable efforts to be Rolling Mill Assets hereunder provide Buyer with the economic and are Excluded Assets (operational equivalent of the “Excluded assignment and transfer of such Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties agree Contract to cooperate and use reasonable best efforts prior to Buyer as of the Closing (with no obligation on the part of either party to pay any costs or fees with respect to such assistancethe TMA Business and the Transferred Assets; (B) make available to effect Buyer a correct and complete copy (including all amendments and modifications thereto) of the separation relevant portions of such Shared Contracts. If Contract to the extent related to the TMA Business; (C) cooperate with Buyer, at Buyer’s expense, to enforce any rights available against any other party to such Shared Contracts are Contract with respect to the TMA Business, and (D) not separated at Closingamend, supplement, extend, renew or otherwise modify in any material respects such Shared Contract in any manner adverse to Buyer with respect to the parties agree to continue TMA Business unless (x) Buyer gives its prior written consent or (y) Buyer is first released from all Liabilities under such Shared Contract; and
(ii) Buyer agrees to provide each to Seller and its Subsidiaries such maintenance, support, training or other with reasonable cooperation services, products or payments as may be required under the terms and assistance in effecting the separation conditions of such Shared Contracts and shall treat Contract with respect to the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared ContractsTMA Business.
Appears in 1 contract
Shared Contracts. (a) With respect Separation of Certain Shared Contracts for Benefit of Purchaser. Prior to the Closing, Sellers and Purchaser shall use commercially reasonable efforts to work together (and, if necessary and desirable, to work with the third parties to the Separation Shared Contractual Liabilities pursuant to, under or relating Contracts) in an effort to a given Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, be allocated between Seller and Buyer (or the Company, as applicable) as follows:
(i) If a Liability divide, modify and/or replicate (in whole or obligation is incurred exclusively in part) the respective rights and obligations under and in respect of the Rolling Mill Business or Separation Shared Contracts and (ii) if reasonably feasible, novate the Excluded Businesses, such Liability or obligation shall be allocated to Buyer (respective rights and obligations under and in respect of the Rolling Mill Business) or Seller (in respect Separation Shared Contracts, such that, effective as of the Excluded Businesses);
Closing, (iiA) Purchaser is the beneficiary of the rights and is responsible for the obligations related to that portion of the Separation Shared Contract Related to the Business and included in the Purchased Assets (the “Business Portion”) so that, subsequent to the Closing, Sellers shall have no rights or obligations with respect to the Business Portion of the Separation Shared Contract, and (B) the applicable Seller is the beneficiary of the rights and is responsible for the obligations related to that portion of the Separation Shared Contract other than the Business Portion (the “Non-Business Portion”) so that, subsequent to the Closing, Purchaser shall have no rights or obligations with respect to the Non-Business Portion of the Separation Shared Contract. If a Liability the applicable parties are not able to enter into an arrangement to formally divide, modify and/or replicate one or obligation cannot be so allocated under clause more Separation Shared Contracts prior to the Closing as contemplated by the previous sentence, then (i) above, such Liability or obligation shall be allocated to Seller or Buyer, as the case may be, based on the relative proportions of total benefit received (over the term of the Shared Contract remaining as of the Closing Date, measured as of the date of the allocation) by the Rolling Mill Business or the Excluded Business under the relevant Shared Contract. Notwithstanding the foregoing, each of Seller and Buyer shall be responsible for any or all Liability or obligation arising from its (or its Subsidiary’s) breach of the relevant Shared Contract to which this Section 5.21 otherwise pertains; provided, however, that each of Seller and Buyer Purchaser shall be entitled to indemnification from the other for benefits of the portion Business Portion of any Liability such Separation Shared Contract accruing on or obligation arising from after the Closing Date to the extent (and only to the extent) that Sellers may provide such benefits (A) without violating the terms of such Separation Shared Contract and (B) without incurring any breach material expense (and any such expense shall be reimbursed by Purchaser) and (ii) to the extent Purchaser receives such benefits, Purchaser shall perform at its sole cost and expense the obligations of the relevant applicable Seller to be performed after the Closing under the Business Portion of such Separation Shared Contract by as in effect on the Closing Date until the earliest of (i) such time as separate Contracts for such goods or services have been agreed between such Seller and the other party to such Contracts, (or its Subsidiary)ii) the election by Seller to terminate such arrangement, which indemnification shall be separate from and not subject to (iii) the limitations set forth in Section 9.7.
(b) If Seller or any Retained Subsidiaries, on the one hand, or Buyer or any termination of its Subsidiaries, on the other hand, receives any benefit or payment which under any such Separation Shared Contract was intended for and (iv) the other, Seller 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 Schedule Section 5.21(c)(i) shall not be deemed to be Rolling Mill Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, the parties have determined that it date which is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties agree to cooperate and use reasonable best efforts prior to 12 months after the Closing (with no obligation on the part of either party to pay any costs or fees with respect to such assistance) to effect the separation of such Shared Contracts. If such Shared Contracts are not separated at Closing, the parties agree to continue to provide each other with reasonable cooperation and assistance in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared ContractsDate.
Appears in 1 contract
Sources: Asset Purchase Agreement
Shared Contracts. (a) With respect Subject to Shared Contractual Liabilities pursuant tothe provisions of this Section 2.11, under or the Purchased Assets shall include those rights exclusively relating to the Facility or another Purchased Asset which arise from and after the Initial Closing under a given Shared Contract, subject to the terms and conditions of such Shared Contractual Contract (such rights, the "Shared Contract Rights"), and the Assumed Liabilities shallshall include those Liabilities exclusively relating to the Facility or a Purchased Asset which arise from and after the Initial Closing under a Shared Contract, unless otherwise allocated pursuant subject to this Agreement or an Ancillary Agreementthe terms and conditions of such Shared Contract (such Liabilities, the "Shared Contract Liabilities"). All rights and Liabilities which arise under a Shared Contract other than the Shared Contract Rights and the Shared Contract Liabilities shall in all cases be allocated between Seller included in the Excluded Assets and Buyer (or the CompanyExcluded Liabilities, as applicable) as follows:
(i) If a Liability or obligation is incurred exclusively in respect . For purposes of determining the Rolling Mill Business or the Excluded Businesses, such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Buyer, as the case may be, based on the relative proportions of total benefit received (over the term scope of the Shared Contract remaining as of Rights and Shared Contract Liabilities, the Closing Date, measured as of the date of the allocation) by the Rolling Mill Business or the Excluded Business rights and Liabilities under the relevant each Shared Contract. Notwithstanding the foregoing, each of Seller and Buyer Contract shall be responsible for any or all Liability or obligation arising from its equitably allocated among (or its Subsidiary’sa) breach of the relevant Shared Contract to which this Section 5.21 otherwise pertains; provided, however, that each of Seller Facility and Buyer shall be entitled to indemnification from the other for the portion of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.7.
(b) If Seller or any Retained SubsidiariesPurchased Assets, on the one hand, and (b) the other business lines, facilities or Buyer other operations other than those solely related to the Facility and the Purchased Assets that will continue to be owned by Seller or any of its SubsidiariesAffiliates, to the extent applicable, after the Initial Closing, on the other hand, receives in accordance with the following equitable allocation principles:
(i) any allocation set forth in the Shared Contract shall control;
(ii) if there is no allocation in the Shared Contract as described in clause (i) of this Section 2.11(a), then any allocation previously made by Seller or its Affiliates in the ordinary course of business shall control;
(iii) if there is no allocation as described in clause (ii) of this Section 2.11(a), then the quantifiable proportionate benefit to be received by Seller and Purchaser after the Initial Closing Date (to be determined by mutual good faith agreement of Seller and Purchaser) shall control; and
(iv) if not quantifiable as described in clause (iii) of this Section 2.11(a), then reasonable accommodation (to be determined by mutual good faith agreement of Seller and Purchaser) shall control.
(b) At the election of Seller and subject to any applicable consents or payment approvals, such allocation may be effectuated by termination of the Shared Contract in its entirety and the execution of new Contracts or by an assignment to and assumption by Purchaser of the Shared Contract Rights and the Shared Contract Liabilities under such Shared Contract. The completion of the documentation of any such termination and replacement or assignment is not a condition to the Initial Closing. As soon as practicable after the execution of this Agreement, Purchaser and Seller shall make appropriate requests to obtain, at the election of Seller, either consents or approvals from appropriate third parties to assignment and assumption by Purchaser of such Shared Contract Rights and Shared Contract Liabilities or reasonably comparable replacement or separated Contracts (each, a "Replacement Contract") that provide for the Shared Contract Rights and Shared Contract Liabilities for the benefit of Purchaser and the Business with the remaining rights and Liabilities for the benefit of Seller and its Affiliates, and Purchaser and Seller shall use commercially reasonable efforts to obtain such consents, approvals or Replacement Contracts as expeditiously as possible. Any requests for such consents, approvals or Replacement Contracts shall include a request that Seller and its Affiliates be unconditionally released from all Liabilities relating to the Shared Contract Rights and Shared Contract Liabilities attributable to the period after the Initial Closing, and Purchaser and Seller shall use commercially reasonable efforts to obtain such releases. [***].
(c) Purchaser and Seller agree that obtaining the consents, approvals or Replacement Contracts for the Shared Contracts is not a condition to the Initial Closing. In the event that a consents, approvals or Replacement Contract for a Shared Contract is not obtained by the Initial Closing and the Initial Closing occurs, Seller, in its sole discretion, may either assign the Shared Contract Rights and Shared Contract Liabilities arising under such Shared Contract to Purchaser notwithstanding the absence of a consents, approvals therefor or use commercially reasonable efforts to cooperate with Purchaser in effecting a commercially reasonable arrangement permitted by Law and not inconsistent with such Shared Contract under which Purchaser shall receive benefits under the Shared Contract corresponding to the Shared Contract Rights from and after the Initial Closing, and, to the extent of the benefits received, Purchaser shall pay and perform Seller's and its Affiliates' Liabilities arising under the Shared Contract corresponding to the Shared Contract Liabilities from and after the Initial Closing in accordance with its terms; provided that Seller and its Affiliates shall not be liable or have any further responsibility to Purchaser for the failure of such consents, approvals or Replacement Contracts to be obtained, and, in connection with any such assignment or arrangement, Seller and its Affiliates shall not be responsible for any Liabilities relating to such assignment or arrangement or the Shared Contract Rights and Shared Contract Liabilities, and Purchaser shall indemnify and hold harmless Seller and its Affiliates from and against any Losses arising out of or related to any such Liabilities. Notwithstanding anything to the contrary, if any amount under any Shared Contract was intended for the other, prepaid by Seller 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 Schedule Section 5.21(c)(i) shall not be deemed to be Rolling Mill Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties agree to cooperate and use reasonable best efforts prior to the Initial Closing (with no obligation on the part of either party to pay any costs or fees and Purchaser will receive a Shared Contract Right with respect to such assistance) to effect Shared Contract after the separation of such Shared Contracts. If such Shared Contracts are not separated at Initial Closing, then the parties agree Cash Consideration to continue to provide each other with reasonable cooperation and assistance in effecting be paid at the separation of Initial Closing shall be increased by such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared Contracts.prepaid amounts
Appears in 1 contract
Shared Contracts. Except as otherwise agreed by Seller and Purchaser in writing or as otherwise provided in this Agreement or any of the Transaction Agreements, until the expiration date of any Shared Contract set forth on Section 3.17 of the Disclosure Letter (aa “Specified Shared Contract”) With (without giving effect to any extension thereof), the Parties shall (and shall cause their respective Affiliates to) use commercially reasonable efforts to obtain or structure an arrangement for Purchaser and its Affiliates to, from and after the Closing, 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 a given any Specified Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, shall be allocated between Seller and Buyer (or the Company, as applicable) Purchaser as follows:
: (i1) If if a Liability or obligation liability is incurred exclusively solely in respect of either the Rolling Mill Business or the Excluded Businessesother businesses of Seller or any of its Affiliates, such Liability or obligation liability shall be allocated to Buyer Purchaser (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businessesother businesses of Seller or any of its Affiliates);
; and (ii2) If if a Liability or obligation liability cannot be so allocated under clause (i) above1), such Liability or obligation liability shall be allocated to Purchaser and Seller or Buyer, as the case may be, based on the relative proportions proportion of total benefit under such Specified Shared Contract received (over the term by Purchaser or its Subsidiaries in respect of the Shared Contract remaining Business and Seller or any of its Affiliates (other than the Acquired Companies) in respect of its other businesses, as of the Closing Date, measured as of the date of the allocation) reasonably determined in good faith by the Rolling Mill Business or the Excluded Business under the relevant Shared ContractPurchaser and Seller. Notwithstanding the foregoingforegoing or anything to the contrary in this Agreement, each of (i) Seller and Buyer or Purchaser, as applicable, shall be responsible for any or all Liability or obligation Liabilities arising from its (or its Subsidiary’sAffiliates’) direct or indirect breach of the relevant any Specified Shared Contract, (ii) Seller shall be responsible for any and all Liabilities arising from or relating to any of pre-Closing direct or indirect breach of any Specified Shared Contract and (iii) Purchaser and Seller shall not, and shall cause their respective Affiliates not to, (A) amend or modify in a manner that is adverse to which this Section 5.21 otherwise pertains; provided, however, that each of Seller and Buyer shall be entitled to indemnification from the other for the portion of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary)Person, which indemnification shall be separate from and not subject to the limitations set forth in Section 9.7.
(b) If Seller or any Retained Subsidiaries, on the one hand, or Buyer or any of its SubsidiariesAffiliates or the Business in any material respect or terminate any Specified Shared Contract (excluding, on for the 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 handPerson, receives any benefit or payment which under any Shared Contract was intended for the otherof its Affiliates, Seller 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 Schedule Section 5.21(c)(i) shall not be deemed to be Rolling Mill Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties agree to cooperate and use reasonable best efforts prior to the Closing (with no obligation on the part of either party to pay any costs or fees with respect to such assistance) to effect the separation of such Shared Contracts. If such Shared Contracts are not separated at Closing, the parties agree to continue to provide each other with reasonable cooperation and assistance in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared Contracts.
Appears in 1 contract
Shared Contracts. (a) With respect to Shared Contractual Liabilities pursuant to, under or relating to a given Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement, a Local Purchase Agreement or an Ancillary a Related Agreement, be allocated between Seller APD and Buyer (or the Company, as applicable) as follows:
(i) If a Liability or obligation is incurred exclusively in respect of the Rolling Mill PMD Business or the Excluded Businesses, such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill PMD Business) or Seller APD (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller APD or Buyer, as the case may be, based on the relative proportions of total benefit received (over the term of the Shared Contract remaining as of the Closing Date, measured as of the date of the allocation) by the Rolling Mill PMD Business or the Excluded Business under the relevant Shared Contract. Notwithstanding the foregoing, each of Seller APD and Buyer shall be responsible for any or all Liability or obligation Liabilities arising from its (or its Subsidiary’s) breach of the relevant Shared Contract to which this Section 5.21 5.23 otherwise pertains; provided, however, that each of Seller and Buyer shall be entitled to indemnification from the other for the portion of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.7.
(b) If Seller APD or any Retained SubsidiariesSubsidiary, on the one hand, or Buyer or any of its SubsidiariesSubsidiaries (including the Transferred PMD Companies), on the other hand, receives any benefit or payment which under any Shared Contract which was intended for the other, Seller APD and Buyer will use their respective reasonable best efforts towill, and to will 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 5.23(c)(i) of the Seller’s Disclosure Schedule Section 5.21(c)(i) shall not be deemed to be Rolling Mill PMD Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii)5.23(c)(ii) of the Seller’s Disclosure Schedule, be separated into separate Contracts between the appropriate Third Party third party and either the Excluded Businesses or the Rolling Mill PMD Business. The parties agree to cooperate and use reasonable best efforts prior to From the date hereof until the date that is eighteen (18) months following the Closing (with no obligation Date, the parties hereto shall use their respective commercially reasonable efforts to enter into or to grant, and to cause each third-party counterparty to each Shared Contract identified on Section 5.23(c)(ii) of the part of either party Seller’s Disclosure Schedule to pay enter into or to grant, any costs such new agreements or fees consents as are reasonably necessary to permit APD and its Affiliates or Buyer and its Affiliates, as applicable, to derive the benefits, and assume the obligations and economic burdens, with respect to each Shared Contract identified on Section 5.23(c)(ii) of the Seller’s Disclosure Schedule on an independent basis following the Closing; provided, however, that neither APD, Buyer nor any of their respective Affiliates shall be required to offer or grant any financial or non-financial accommodation in connection therewith. If, on the Closing Date, any such assistancethird party agreement or consent is not obtained, APD and Buyer shall, and APD shall cause the other Sellers to, cooperate in a mutually acceptable arrangement under which Sellers and their respective Affiliates or Buyer and its Affiliates, as applicable, would in compliance with Law, obtain the appropriate benefits and assume the related obligations and bear the related economic burdens in respect of each Shared Contract identified on Section 5.23(c)(ii) of the Seller’s Disclosure Schedule, including by means of subcontracting, sublicensing or subleasing arrangements, or enforcement by the party to effect the separation of such Shared Contracts. If such Shared Contracts are not separated at Closing, the parties agree to continue to provide each other with reasonable cooperation and assistance in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party Contract for the benefit (and at the expense) of such Shared Contractsthe other party or its Affiliates (as applicable) that is an intended beneficiary thereof pursuant to this Section 5.23.
(d) As used in this Section 5.23, Buyer’s Subsidiaries shall include the Transferred PMD Companies.
Appears in 1 contract
Sources: Purchase Agreement (Air Products & Chemicals Inc /De/)
Shared Contracts. Seller and Purchaser acknowledge that Seller or its Subsidiaries are parties to certain Contracts to be assigned, transferred or conveyed in accordance with Section 2.4(b) that do not exclusively relate to the Business (aeach such Contract, together with each Contract that is listed on Section 2.11(c) of the Seller Disclosure Schedules, a “Shared Contract” XE "Shared Contract” \t “2.11(b)” ); provided that in no event shall the Shared Contracts include any Contract that (i) is solely among Seller and its Affiliates or (ii) is an Excluded Asset.
(i) With respect to Shared Contractual Liabilities pursuant to, under or relating to a given Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, be allocated between Seller and Buyer (or the Company, as applicable) as follows:
(i) If a Liability or obligation is incurred exclusively in respect of the Rolling Mill Business or the Excluded Businesses, such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Buyer, as the case may be, based on the relative proportions of total benefit received (over the term of the Shared Contract remaining as of the Closing Date, measured as of the date of the allocation) by the Rolling Mill Business or the Excluded Business under the relevant Shared Contract. Notwithstanding the foregoing, each of Seller and Buyer shall be responsible for any or all Liability or obligation arising from its (or its Subsidiary’s) breach of the relevant Shared Contract to which this Section 5.21 otherwise pertains; provided, however, that each of Seller and Buyer shall be entitled to indemnification from the other for the portion of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.7.
(b) If Seller or any Retained Subsidiaries, on the one hand, or Buyer or any of its Subsidiaries, on the other hand, receives any benefit or payment which under any Shared Contract was intended for the other, Seller 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 or described on Schedule Section 5.21(c)(i2.11(c)(i) shall not be deemed to be Rolling Mill Assets hereunder and are Excluded Assets of the Seller Disclosure Schedules (the “Excluded Section 2.11(c)(i) Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain ” XE "Section 2.11(c)(i) Shared Contracts, which are identified on Schedule Section 5.21(c)(ii” \t “2.11(c)(i)” ), be separated into separate Contracts between the appropriate Third Party Seller and either the Excluded Businesses or the Rolling Mill Business. The parties agree to Purchaser shall cooperate with each other and use their commercially reasonable best efforts prior to the Closing (in accordance with the terms hereof) until the Applicable End Date to, except as otherwise provided in Section 2.11(c)(i) of the Seller Disclosure Schedules, (i) divide, modify or replicate, in whole or in part (and in the case of Seller, to assist Purchaser in negotiating and entering into arrangements for the benefit of the Business with the counterparty to such Shared Contract to derive substantially the rights and benefits under such Shared Contract, taking into account differences between the Business and the Retained Business following the Closing, the respective rights, obligations and liabilities relating to the Business under and in respect of such Shared Contract), and obtain each Approval required in connection therewith (a “New Contract” XE "New Contract” \t “2.11(c)(i)” ), or (ii) to the extent the action contemplated in the foregoing clause (i) is not reasonably practicable, novate the respective rights, obligations and liabilities relating to the Business under and in respect of such Shared Contract, and obtain each Approval required in connection therewith, in each case such that, effective as of the later of the Closing and the effective time of such division, modification or novation (the “Split Time” XE "Split Time” \t “2.11(c)(i)” ), (A) Purchaser or its designated Subsidiary is the beneficiary of the rights, and is responsible for the post-Split Time obligations and liabilities related to that portion of such Shared Contract related to the operation or conduct of the Business (the “Business Portion” XE "Business Portion” \t “2.11(c)(i)” ) (so that, subsequent to the Split Time, Seller and its Affiliates shall have no obligation on the part of either party to pay any costs post-Split Time rights or fees post-Split Time obligations and liabilities with respect to such assistance) to effect the separation Business Portion of such Shared Contract, other than with respect to Government Contracts that require Seller and its Affiliates to guarantee payment of liabilities and performance of obligations assumed by Purchaser) and (B) Seller or its Affiliates are the beneficiaries of the rights and are responsible for the obligations and liabilities related to such Shared Contract other than the Business Portion (the “Non-Business Portion” XE "Non-Business Portion” \t “2.11(c)(i)” ) (so that, subsequent to the Split Time, Purchaser and its Subsidiaries shall have no rights, obligations or liabilities with respect to the Non-Business Portion of such Shared Contract) (a “Split”). Seller and Purchaser shall continue to cooperate and use their commercially reasonable efforts to achieve the outcomes described in this Section 2.11(c)(i) until the earliest of (i) such time as such Split is effected, (ii) the expiration of the term of such Contract in accordance with its current term or the execution of a replacement Contract following the Closing by Purchaser or its Affiliates and (iii) the date that is eighteen (18) months following the Closing Date (such earliest date, the “Applicable End Date” XE "Applicable End Date” \t “2.11(c)(i)” ).
(ii) With respect to the Shared Contracts listed or described on Section 2.11(c)(ii) of the Seller Disclosure Schedules (the “Section 2.11(c)(ii) Shared Contracts. If ” XE "Section 2.11(c)(ii) Shared Contracts” \t “2.11(c)(i)” and, together with the Section 2.11(c)(i) Shared Contracts, the “Specified Shared Contracts” XE "Specified Shared Contracts” \t “2.11(c)(i)” ), from and after the Closing until the Applicable End Date, Seller and Purchaser shall cooperate with each other and use their commercially reasonable efforts to, except as otherwise provided in Section 2.11(c)(ii) of the Seller Disclosure Schedules, Split such Shared Contracts are not separated at Closing, the parties agree to continue to provide each other with reasonable cooperation and assistance in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared Contractsobtain an applicable New Contract.
Appears in 1 contract
Sources: Asset Purchase Agreement (PTC Inc.)
Shared Contracts. (a) With respect to Shared Contractual Liabilities pursuant to, under or relating to a given Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, be allocated between The parties hereto acknowledge that Seller and Buyer its Affiliates (or other than the Company, as applicableTransferred Entities) as follows:
(iare parties to certain contracts and agreements set forth on Section 7.10(a) If a Liability or obligation is incurred exclusively in respect of the Rolling Mill Business Seller Disclosure Schedules that relate to the operations or the Excluded Businesses, such Liability or obligation shall be allocated to Buyer (in respect conduct of the Rolling Mill Business) business of one or Seller (in respect more of the Excluded Businesses);
Transferred Entities, but which will remain with Seller and its Affiliates (iiother than the Transferred Entities) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Buyer, as after the Closing. In the case may be, based of those contracts set forth on the relative proportions of total benefit received (over the term Section 7.10(b) of the Seller Disclosure Schedule (collectively, the “Shared Contracts”), the parties shall cooperate with each other and use their respective commercially reasonable efforts (which shall not require any party hereto to pay any money, grant any concession or provide any other consideration to any Person in connection therewith) to obtain the agreement of the third party that is the counterparty to each Shared Contract remaining to enter into a new contract effective as of the Closing Date, measured Date pursuant to which a Transferred Entity will receive substantially the same services provided under the Shared Contract to such Transferred Entity prior to the Closing on terms and conditions substantially similar to those contained in the Shared Contract as of the date Closing Date (each, a “Replacement Contract”). If a Replacement Contract is not entered into with respect to any Shared Contract prior to the Closing Date, Seller agrees to continue to use its commercially reasonable efforts for a period of six months from and after the allocation) by Closing Date to cause the Rolling Mill Business or the Excluded Business under the relevant Shared Contract. Notwithstanding the foregoing, each of Seller and Buyer shall be responsible for any or all Liability or obligation arising from its (or its Subsidiary’s) breach of the relevant counterparty to such Shared Contract to which this Section 5.21 otherwise pertains; providedenter into a Replacement Contract, howeverprovided that during such six-month period, that each of Seller and its Affiliates shall provide Buyer shall be entitled to indemnification from and the other for Transferred Entities with the portion benefits of any Liability or obligation arising from any breach of the relevant such Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject Contracts pursuant to the limitations set forth in Section 9.7.
(b) If Seller or any Retained Subsidiaries, on the one hand, or Transition Services Agreement at no additional cost to Buyer or any of its Subsidiariesthe Transferred Entities. If a Replacement Contract has not been obtained after the six month period, on the other hand, receives any benefit or payment which under any Shared Contract was intended for the otherthen, Seller and Buyer will use their respective reasonable best efforts toshall, and to shall cause their respective Subsidiaries Affiliates to, deliver such benefit or payment use their commercially reasonable efforts to secure an arrangement reasonably satisfactory to both parties under which the other party.
(c) Notwithstanding anything to Transferred Entities would, in compliance with Applicable Law, obtain the contrary herein, benefits associated with the parties agree that the Shared Contracts listed on Schedule Section 5.21(c)(i) shall not be deemed to be Rolling Mill Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain applicable Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated into separate Contracts between arrangement may include Seller and its Affiliates providing the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The Transferred Entities with such benefits for a transitional period reasonably acceptable to both parties agree to cooperate and use reasonable best efforts prior pursuant to the Transition Services Agreement. For the avoidance of doubt, (i) in no event shall any Replacement Contract impose any obligations or liability on Seller or its Affiliates after the Closing and (with ii) in no event shall the execution of any Replacement Contract constitute a condition to the obligation of Buyer to consummate the Closing on the part of either party to pay any costs or fees with respect to such assistance) to effect the separation of such Shared Contracts. If such Shared Contracts are not separated at Closing, the parties agree to continue to provide each other with reasonable cooperation terms and assistance conditions set forth in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared Contractsthis Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (MSCI Inc.)
Shared Contracts. (ai) At or prior to the Closing Date (unless waived or modified by the FTC with respect to any Shared Contract), (A) each of the Seller and the Purchaser shall, and shall cause their respective Affiliates to, cooperate to cause the Shared Contracts to be replaced with separate Contracts or Leases, as applicable (the “Replacement Contracts”), that provide that the Purchaser or its Affiliates receive contract rights and obligations under such Replacement Contracts that are substantially equivalent in the aggregate to those contract rights and obligations utilized by the Seller or its Affiliates under the Shared Contracts in the conduct of the Transferred Business prior to the Closing; provided that the Purchaser shall execute an assignment for any portion of a Shared Contract or establish, in the Purchaser’s name, a Replacement Contract between the Purchaser and the applicable counterparty for any such Shared Contract if the terms being offered by such counterparty are substantially equivalent in the aggregate to the current terms of such Shared Contract or (B), as provided in the following sentence, the Purchaser shall acquire the applicable assets subject to such Shared Contract by exercising a purchase option. With respect to any Shared Contractual Liabilities Contract that is a Lease for any Loading, Transportation and Distribution Asset or any item of Tangible Personal Property that provides for a purchase option, if the Purchaser does not enter into a Replacement Contract in the Purchaser’s name for any such Shared Contract, then, notwithstanding anything in this Section 1.03 to the contrary, at the Closing the Purchaser shall purchase such Loading, Transportation and Distribution Assets or other Tangible Personal Property according to the terms set forth in such Shared Contract.
(ii) The Purchaser and the Seller shall cooperate and provide each other with reasonable assistance in effecting such separation of the Shared Contracts. If the Purchaser and the Seller are not able to effect the separation of a Shared Contract in accordance with Section 1.03(b)(i)(A) or (B) prior to the Closing and the FTC waives or modifies the requirement to do so, then, until any such Shared Contract is separated, to the extent permissible under applicable Law and under the terms of such Shared Contract, each of the Purchaser and the Seller shall (A) assume and perform the liabilities and obligations under such Shared Contract relating to its respective business or that of its Affiliates (and shall promptly reimburse the other party for any reasonable out-of-pocket expenses incurred by the other party or its Affiliates for liabilities and obligations under such Shared Contract not relating to the business of such other party or its Affiliates), allocated in accordance with this Section 1.03(b); (B) hold in trust for the benefit of the other party, and shall promptly forward to the other party, any monies or other benefits received pursuant to, under to such Shared Contract relating to the respective businesses of the other party (or its Affiliates); and (C) use commercially reasonable efforts to institute alternative arrangements intended to put the parties in substantially the same economic position as if such Shared Contract were separated.
(iii) All liabilities and obligations relating to a given Shared Contract, such Shared Contractual Liabilities Contract shall, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreementa Replacement Contract, be allocated between Seller deemed to be (A) Assumed Liabilities to the extent such liabilities and Buyer obligations relate to the Transferred Business and relate to and are required to be performed during periods from and after the Closing and (B) Retained Liabilities to the extent they do not relate to the Transferred Business or they relate to the Company, as applicable) as follows:
(i) If a Liability ownership or obligation is incurred exclusively in respect operation of the Rolling Mill Transferred Business or prior to the Excluded Businesses, such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Buyer, as the case may be, based on the relative proportions of total benefit received (over the term of the Shared Contract remaining as of the Closing Date, measured as of the date of the allocation) by the Rolling Mill Business or the Excluded Business under the relevant Shared ContractClosing. Notwithstanding the foregoing, each of Seller and Buyer party shall be solely responsible for any and all liabilities and obligations to the extent arising out of or all Liability or obligation arising from its relating to such party’s (or its Subsidiary’sAffiliates’) breach of any such Shared Contract; provided that the relevant Shared Contract Purchaser’s failure to which this Section 5.21 otherwise pertains; provided, however, that each of Seller and Buyer comply with or satisfy any Assumed Liabilities shall not be entitled to indemnification from the other for the portion deemed a breach of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.7.
(b) If Seller or any Retained Subsidiaries, on the one hand, or Buyer or any of its Subsidiaries, on the other hand, receives any benefit or payment which under any Shared Contract was intended for the other, Seller 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 partyAffiliates.
(c) Notwithstanding anything to the contrary herein, the parties agree that the Shared Contracts listed on Schedule Section 5.21(c)(i) shall not be deemed to be Rolling Mill Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties agree to cooperate and use reasonable best efforts prior to the Closing (with no obligation on the part of either party to pay any costs or fees with respect to such assistance) to effect the separation of such Shared Contracts. If such Shared Contracts are not separated at Closing, the parties agree to continue to provide each other with reasonable cooperation and assistance in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared Contracts.
Appears in 1 contract
Shared Contracts. (a) Notwithstanding anything to the contrary herein, Shared Contracts and any rights or obligations thereunder shall not be deemed to be Business Assets or Assets of the Company. Each Seller shall use commercially reasonable efforts to cause the Shared Contracts set forth on Section 5.08 of the Disclosure Schedule (“Mirrored Shared Contracts”) to be replaced with separate Contracts that provide that the Company shall receive such rights and obligations under a replacement Contract as are substantially similar to those Contract rights and obligations utilized in the Business. The Parties shall cooperate and provide each other with reasonable assistance in effecting such separation of such Mirrored Shared Contracts prior to the Closing and for a period of three months following the Closing.
(b) The Sellers shall be responsible for any additional costs or fees arising from and under a replacement Contract or in connection with the separation of a Mirrored Shared Contract, if any, or in connection with any arrangement described in this Section 5.08. If the Parties are not able to effect the separation of a Mirrored Shared Contract prior to the Closing, then, until any such Mirrored Shared Contract is separated, to the extent permissible under Law and under the terms of such Mirrored Shared Contract, each of the Parties shall (i) assume and perform the Liabilities and obligations under such Mirrored Shared Contract relating to its respective business or that of its Affiliates (and shall promptly reimburse the other Party for any expenses relating thereto incurred by either other Party or its Affiliates), allocated in accordance with Section 5.08(c), (ii) hold in trust for the benefit of the other Parties, and shall promptly forward to the other Parties, any monies or other benefits received pursuant to such Mirrored Shared Contract relating to the respective businesses of the other Parties (or their respective Affiliates) and (iii) endeavor to institute alternative arrangements intended to put the Parties in substantially the same economic position as if such Mirrored Shared Contract were separated; provided, however, that, if the Parties are not able to effect the separation of any Mirrored Shared Contract within three months after the Closing, then the Bally Entities shall have no further obligation to Purchaser or its Affiliates with respect thereto and may freely terminate such Mirrored Shared Contract; and provided, further, that any amounts owed by one Party (the “Payor Party”) to the other Party (the “Payee Party”) pursuant to Section 5.08(b)(i) may be satisfied at the Payor Party’s option by setting off such amounts against any amounts owed to it from the Payee Party pursuant to Section 5.08(b)(i). Purchaser shall be solely responsible for replacing any Mirrored Shared Contracts not separated or transitioned hereunder.
(c) With respect to Shared Contractual Liabilities pursuant to, under or relating to a given Shared ContractContract (“Shared Contractual Liabilities”), such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement, an Ancillary Agreement or an Ancillary Agreementa Mirrored Shared Contract, be allocated between Seller the Sellers, on the one hand, and Buyer (or Purchaser and its Affiliates, on the Companyother hand, as applicable) as follows:
(i) If first, to the extent a Liability or obligation is incurred exclusively in respect of a benefit received by the Rolling Mill Excluded Business or the Excluded BusinessesBusiness, such Liability or obligation shall be allocated determined to Buyer (in respect of the Rolling Mill Business) be a Retained Liability or Seller (in respect of the Excluded Businesses);an Assumed Liability, respectively; and
(ii) If second, to the extent a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Buyerthe Sellers, on the one hand, and to Purchaser and its Affiliates, on the other hand, as the case may be, based on the relative proportions of total benefit benefits received ((A) to the extent the Liabilities relate to a specific period, over such period and (B) otherwise over the term of the applicable Shared Contract remaining as of the Closing DateContract, measured as of up to the date of the allocation) by the Rolling Mill Business or the Excluded Business under the relevant Shared Contract. Notwithstanding the foregoing, each of Seller and Buyer shall be responsible for any or all Liability or obligation arising from its (or its Subsidiary’s) breach of the relevant Shared Contract to which this Section 5.21 otherwise pertains; provided, however, that each of Seller and Buyer shall be entitled to indemnification from the other for the portion of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.7.
(b) If Seller or any Retained SubsidiariesBusiness, on the one hand, or Buyer or any of its Subsidiariesthe Business, on the other hand, receives under the relevant Shared Contract.
(d) From and after the Closing,
(i) until either (A) with respect to any benefit Member whose membership arises from a Shared Membership Contract that is a Paid-In-Full Membership Contract or payment which under prepaid Financed Membership Contract, the later of the expiration of such Contract in accordance with its terms or December 31, 2006, or (B) in the case of any other Shared Contract was intended for Membership Contract, December 31, 2006, each of the otherParties will, Seller and Buyer will cause its applicable Affiliates to, allow the use of the Facilities or Excluded Facilities, as the case may be, by Members or members of any Excluded Facilities who are parties to such Shared Membership Contracts as of the Closing in accordance with the terms of such Shared Membership Contracts as in effect at Closing;
(ii) with respect to Shared Membership Contracts entered into by the applicable health club member at any Excluded Facility, the Sellers shall use their respective commercially reasonable best efforts to, and to cause their respective Subsidiaries Affiliates to, deliver notify the Company of any terminations of or other restrictions imposed on the rights of any health club members under such benefit or payment Shared Membership Contracts to the other party.use any Transferred Facility;
(ciii) Notwithstanding anything to the contrary herein, the parties agree that the Shared Contracts listed on Schedule Section 5.21(c)(i) shall not be deemed to be Rolling Mill Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties agree to cooperate and use reasonable best efforts prior to the Closing (with no obligation on the part of either party to pay any costs or fees with respect to Shared Membership Contracts entered into by the applicable Member at any Transferred Facility, Purchaser and the Company shall use their commercially reasonable efforts to, and to cause their respective Affiliates to, notify the Sellers of any terminations of or other restrictions imposed on the rights of any Members under such assistanceShared Membership Contracts to use any Excluded Facilities or Deferred Facilities, as the case may be; and
(iv) to effect none of the separation Parties will, and the Parties will cause their respective Affiliates not to, enter into or renew any Shared Membership Contracts other than (A) renewals required by the terms of such Shared Contracts. If such Shared Contracts are not separated at Closing, the parties agree to continue to provide each other with reasonable cooperation and assistance in effecting the separation of such Shared Contracts and shall treat the same as Shared Membership Contracts or take (B) renewals of Paid-In-Full Membership Contracts or prepaid Financed Membership Contracts prior to December 31, 2006 so long as the Party entering into such reasonable steps renewals notifies the applicable health club members that the right to use the other Party’s and its Affiliates’ Facilities or Excluded Facilities, as are necessary to provide each party the benefit of case may be, by such Shared Contractshealth club members will terminate on December 31, 2006.
Appears in 1 contract
Sources: Purchase Agreement (Bally Total Fitness Holding Corp)
Shared Contracts. Seller, on the one hand, and Buyer, on the other hand, shall, and shall cause their respective controlled Affiliates to, cooperate and shall use their commercially reasonable efforts to cause the Shared Contracts to be replaced with separate contract rights and obligations (athe “Replacement Contracts”) that provide Buyer with contract rights and obligations (including as to pricing metrics) under the Shared Contracts that are substantially similar to those contract rights and obligations (including as to pricing metrics) utilized by Seller in the conduct of the Business prior to the Closing. Buyer and Seller shall each bear one-half (1/2) of the costs and expenses associated with first obtaining and/or entering into any Replacement Contract (e.g., transfer fees, deposits, etc.); provided, however, that neither Buyer nor Seller shall be required to incur any further Liabilities or provide any financial accommodation in connection therewith or in connection with its obligations pursuant to Backstop Shared Contracts pursuant to this Section 5.05; provided, further, that Buyer shall be responsible for all ongoing (i.e., going forward, including payments due at the time of first obtaining and/or entering into any Replacement Contract intended to cover Buyer’s and its Subsidiaries’ going forward costs) costs or fees required to be paid under a Replacement Contract or Backstop Shared Contract or any alternative arrangements entered into pursuant to this Section 5.05. Buyer and Seller shall cooperate and provide each other with reasonable assistance in effecting such separation of the Shared Contracts prior to the Closing and for a period of one hundred eighty (180) days following the Closing. If Buyer and Seller are not able to effect the separation of a Shared Contract (each a “Backstop Shared Contract”), until any such Backstop Shared Contract is separated or otherwise replaced, but in no event longer than one hundred eighty (180) days following the Closing, to the extent permissible under Law and under the terms of such Backstop Shared Contract, (i) Seller shall continue to perform the obligations under such Backstop Shared Contract at the sole cost and expense of Buyer (i.e., Buyer shall promptly, but in no event later than thirty (30) days following receipt of a reasonably detailed invoice from Seller, reimburse Seller for any out-of-pocket costs and expenses or payments of obligations made by Seller under such Backstop Shared Contract (which invoices shall be delivered by Seller to Buyer on a monthly basis and shall aggregate all out-of-pocket costs and expenses and payment of obligations made by Seller under all Backstop Shared Contracts during such month, together with reasonable supporting documentation)), and Buyer shall indemnify and hold the Seller Indemnitees harmless from and against any and all Liabilities based upon, arising out of or relating to the interim arrangements contemplated by this clause (i) with respect to the Backstop Shared Contracts, except to the extent any such Liability arises out of the gross negligence or willful misconduct of Seller, (ii) Buyer and Seller shall hold in trust for the benefit of the other Party, and shall promptly forward to the other Party, any monies or other benefits received pursuant to such Backstop Shared Contract relating to the respective businesses of the other Party (or its respective Affiliates) and (iii) Buyer and Seller shall use commercially reasonable efforts to institute alternative arrangements intended to put the Parties in a substantially similar economic position as if such Backstop Shared Contract were separated into Replacement Contracts in accordance with this Section 5.05; provided that, notwithstanding the foregoing provisions of this paragraph, for a period of one hundred eighty (180) days following the Closing, (x) Seller and its Affiliates shall renew each Shared Contract upon the expiration or termination thereof if Buyer has not entered into a Replacement Contract in respect of such Shared Contract, unless Buyer confirms to Seller in writing that Buyer does not need to receive the benefit of such Shared Contract, and (y) to the extent any such Shared Contract contains an “evergreen” provision that automatically renews such Shared Contract unless terminated or cancelled by Seller or its Affiliates, Seller and its Affiliates shall not terminate or cancel such Shared Contract if Buyer has not entered into a Replacement Contract in respect of such Shared Contract, unless Buyer confirms to Seller in writing that Buyer does not need to receive the benefit of such Shared Contract. For a period of one hundred eighty (180) days following the Closing, Buyer and Seller shall reasonably cooperate to replace any Backstop Shared Contracts to the extent such Backstop Shared Contracts are not separated or transitioned hereunder and, for the avoidance of doubt, Seller shall be under no obligation hereunder (x) to deliver to Buyer the same pricing metrics in any Shared Contract in connection with obtaining any Replacement Contract in respect thereof or providing an alternative arrangement with respect to a Backstop Shared Contract or (y) after the Closing Date to separate or transition, or provide Buyer with any rights or benefits under, any Shared Contract. With respect to Shared Contractual Liabilities pursuant to, under or relating to a given Backstop Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreementa Replacement Contract, be allocated from time to time between Seller and Buyer (or the CompanyRetained Subsidiaries, as applicable) as follows:
(i) If a Liability or obligation is incurred exclusively in respect of on the Rolling Mill Business or one hand, and Buyer, on the Excluded Businesses, such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Buyerother hand, as the case may be, based on the relative proportions of total benefit benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term of the applicable Backstop Shared Contract remaining as of the Closing DateContract, measured as of up to the date of the allocation, without duplication) by the Rolling Mill Business or the Excluded Business under the relevant Shared Contract. Notwithstanding the foregoing, each of Seller and Buyer shall be responsible for any or all Liability or obligation arising from its (or its Subsidiary’s) breach of the relevant Shared Contract to which this Section 5.21 otherwise pertains; provided, however, that each of Seller and Buyer shall be entitled to indemnification from the other for the portion of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.7.
(b) If Seller or any Retained Subsidiaries, on the one hand, or Buyer or any of its SubsidiariesBuyer, on the other hand, receives under the relevant Backstop Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible for any benefit and all Liabilities to the extent arising out of or payment which under relating to such Party’s (or its Subsidiaries’) breach of any such Backstop Shared Contract was intended Contract. It is acknowledged that for the otherpurposes of this Section 5.05 changes in volume metrics, Seller and Buyer will use their respective reasonable best efforts toas well as changes to reflect the needs of the applicable Party, 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 Schedule Section 5.21(c)(i) shall not be deemed to be Rolling Mill Assets hereunder considered when determining whether contract rights and obligations are Excluded Assets (the “Excluded Shared Contractssubstantially similar.”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties agree to cooperate and use reasonable best efforts prior to the Closing (with no obligation on the part of either party to pay any costs or fees with respect to such assistance) to effect the separation of such Shared Contracts. If such Shared Contracts are not separated at Closing, the parties agree to continue to provide each other with reasonable cooperation and assistance in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared Contracts.
Appears in 1 contract
Sources: Asset and Membership Interest Purchase Agreement (Bob Evans Farms Inc)
Shared Contracts. (a) With respect to Shared Contractual Liabilities pursuant to, under or relating to a given Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, be allocated between Seller Seller, on the one hand, and Buyer (or the Company, as applicable) as follows:
(i) If a Liability or obligation is incurred exclusively in respect of the Rolling Mill Business or the Excluded Businesses, such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Buyer, as on the case may beother hand, based on the relative proportions of total benefit benefits under the Shared Contract that reasonably can be expected to be received (measured from the date of allocation over the remaining term of the Shared Contract remaining as of the Closing Date, measured as of the date of the allocationContract) by Seller, on the Rolling Mill Business or one hand, and Buyer, on the Excluded Business under the relevant Shared Contractother hand. Notwithstanding the foregoing, each of Seller and Buyer shall be responsible for any and all Liabilities arising out of or all Liability or obligation arising resulting from its their (or its Subsidiary’stheir respective Affiliates’) breach of the relevant Shared Contract to which this Section 5.21 6.11 otherwise pertains; provided, however, that each of Seller and Buyer shall be entitled to indemnification from the other for the portion of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.7.
(b) If Seller or any Retained Subsidiaries, on the one hand, or Buyer or any of its Subsidiaries, on the other hand, receives any benefit or payment which under any Shared Contract was intended for the other, Seller 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 Schedule Section 5.21(c)(i) shall not be deemed to be Rolling Mill Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, the The parties have determined that it is advisable that certain the Shared Contracts set forth in Schedule 6.11(b) of the Disclosure Schedules (“Mirrored Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), ”) be separated into separate Contracts between the appropriate Third Party third party and either Seller with respect to the Excluded Businesses business of Seller and its Affiliates other than the Business or Buyer with respect to Business. Seller shall hereafter use commercially reasonable efforts to cause the Rolling Mill Mirrored Shared Contracts to be replaced with separate Contracts, preferably effective as of the Closing, that (i) have substantially the same terms as the Mirrored Shared Contracts being replaced and (ii) provide that Buyer shall receive such rights and obligations under a replacement Contract as are substantially similar to those Contract rights and obligations utilized in the Business; provided, however, that Seller gives no assurances that any such replacement Contracts will be obtained. The parties agree to shall cooperate and use provide each other with reasonable best efforts assistance in effecting such separation of the Mirrored Shared Contracts prior to the Closing and for a period of six months following the Closing (with no obligation on the part of either any party to pay any costs or fees with respect to such assistance). Prior to the Closing, Seller shall have the principal right and obligation to negotiate the separation of Mirrored Shared Contracts with third party vendors, and Buyer shall participate directly in such negotiations and have the right to approve the replacement Contract to which Buyer will be a party after separation. From and after the Closing and for a period of six months following the Closing, Buyer shall have the principal right and obligation to negotiate the separation of Mirrored Shared Contracts with third party vendors, and Seller shall participate directly in such negotiations and have the right to approve the Contract to which Seller will be a party after separation. Buyer shall bear 100% of the costs of the third party vendors’ fees or other charges arising from or related to the separation of the Mirrored Shared Contracts from and after the date the Closing until the six-month anniversary of the Closing Date.
(c) If the parties are not able to effect the separation of a Mirrored Shared Contract effective as of the Closing, then, until any such Mirrored Shared Contracts. If Contract is separated, to the extent permissible under Law and under the terms of such Mirrored Shared Contracts Contract, each of the parties shall (i) assume and perform the Liabilities and obligations under such Mirrored Shared Contract relating to its respective business or that of its Affiliates (and shall promptly reimburse the other parties for any expenses relating thereto incurred by any other party or its Affiliates), allocated in accordance with Section 6.11(a), (ii) hold in trust for the benefit of the other parties, and shall promptly forward to the other parties, any monies or other benefits received pursuant to such Mirrored Shared Contract relating to the respective businesses of the other parties (or their respective Affiliates) and (iii) endeavor to institute alternative arrangements intended to put the parties in substantially the same economic and operational position as if such Mirrored Shared Contract were separated; provided, however, that, if the parties are not separated at Closing, the parties agree able to continue to provide each other with reasonable cooperation and assistance in effecting effect the separation of any Mirrored Shared Contract within six months after the Closing, then Seller shall have no further obligation to Buyer or its Affiliates with respect thereto and may freely terminate such Mirrored Shared Contracts Contract; and shall treat provided, further, that any amounts owed by one Party (the same as Shared Contracts or take “Payor Party”) to the other Party (the “Payee Party”) pursuant to Section 6.11(c)(i) may be satisfied at the Payor Party’s option by setting off such reasonable steps as are necessary amounts against any amounts owed to provide each party it from the benefit of such Shared ContractsPayee Party pursuant to Section 6.11(c)(i).
Appears in 1 contract
Sources: Asset Purchase Agreement (Ddi Corp)
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 (ai) draft and agree to a final form of each of Schedule 5.05(a) and Schedule 5.05(b) as promptly as reasonably practicable after the date hereof and (ii) cause the Shared Contracts set forth in Schedule 5.05(a) (to the extent such Shared Contracts do not constitute Transferred Assets) (the “Buyer Designated Shared Contracts”) and the Shared Contracts set forth in Schedule 5.05(b) (to 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 Seller that is party to such Designated Shared Contract, (x) replaced with separate contracts (the “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, 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 any additional costs or fees arising from and under 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, and Seller shall be solely responsible for any additional costs or fees arising from and under 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. For the avoidance of doubt, notwithstanding anything to the 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 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 separated pursuant to a Replacement Contract or replicated as a Replacement Service, to the extent permissible under applicable Law and under the terms of such Designated Shared Contract, Buyer and Seller shall (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 any expenses relating thereto incurred by the other Party or its 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 monies or other benefits received pursuant to such Designated Shared Contract 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 Designated Shared Contract was separated or its services replicated as Replacement Services as described above; provided that, notwithstanding the foregoing, for a period of one hundred and eighty (180) days following the Closing, (x) no Party shall fail to renew any 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 extent such Shared Contracts are not separated or services replicated as described above prior to the Closing. 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 Shared Contractual Liabilities pursuant to, under or relating to resulting from a given Designated Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreementa Replacement Contract or Replacement Service, be allocated from time to time between Seller the Retained Companies, on the one hand, and Buyer (or and the CompanyGroup Companies, as applicable) as follows:
(i) If a Liability or obligation is incurred exclusively in respect of on the Rolling Mill Business or the Excluded Businesses, such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Buyerother hand, as the case may be, based on the relative proportions of total benefit benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term of the such Designated Shared Contract remaining as of the Closing DateContract, measured as of up to the date of the allocation, without duplication) by the Rolling Mill Business Retained Companies, on the one hand, or Buyer and the Excluded Business Group Companies, on the other hand, under the relevant such Designated Shared Contract. Notwithstanding the foregoing, each of Seller and Buyer Party shall be solely responsible for any and all Liabilities to the extent arising out of or all Liability or obligation arising from its relating to such Party’s (or its Subsidiary’sSubsidiaries’) breach of such Designated Shared Contract. It is acknowledged that for the relevant Shared Contract to which purposes of this Section 5.21 otherwise pertains; provided5.05, however, that each of Seller and Buyer what constitutes “substantially similar” shall be entitled to indemnification from determined after taking into account changes in volume and similar pricing metrics, as well as the other for the portion of any Liability or obligation arising from any breach needs of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.7.
(b) If Seller or any Retained Subsidiaries, on the one hand, or Buyer or any of its Subsidiaries, on the other hand, receives any benefit or payment which under any Shared Contract was intended for the other, Seller 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 Schedule Section 5.21(c)(i) shall not be deemed to be Rolling Mill Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”)applicable Party. Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties agree to cooperate and use reasonable best efforts prior to the Closing (with no obligation on the part of either party to pay any costs or fees with respect to such assistance) to effect the separation of such Shared Contracts. If such Shared Contracts are not separated at Closing, the parties agree to continue to provide each other with reasonable cooperation and assistance in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared ContractsApprovals .
Appears in 1 contract
Shared Contracts. (a) The Company or other applicable Seller shall split and partially assign to the Buyer or a Buyer Designee or have replicated for the benefit of the Buyer or a Buyer Designee as of the Closing each Assignable Shared Contract in accordance with its terms.
(b) With respect to each Shared Contractual Liabilities pursuant toContract that is not an Assignable Shared Contract (the “Non-Assignable Shared Contracts”), each Party shall use its reasonable best efforts in consultation with one another prior to the Closing Date to cause the counterparty to each such Non-Assignable Shared Contract to consent to the split and partial assignment or replication of such Non-Assignable Shared Contract to the Buyer or a Buyer Designee, or to otherwise enter into a new Contract with the Buyer or a Buyer Designee on substantially the same terms as exist under or relating to a given the applicable Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, be allocated between Seller and Buyer (or the Company, as applicable) as follows:
(i) If a Liability or obligation is incurred exclusively in respect of the Rolling Mill Business or the Excluded Businesses, such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Buyer, as the each case may be, based on the relative proportions of total benefit received (over the term of the Shared Contract remaining as of the Closing Date, measured as of the date of the allocation) by the Rolling Mill Business or the Excluded Business under the relevant Shared ContractClosing. The obligations set forth in this Section 2.3 shall in all cases be subject to Section 2.2. Notwithstanding the foregoing, each of Seller and Buyer no Party shall be responsible required to pay any transfer or other fee or incur any liability to split, assign or replicate any Shared Contract, other than to the extent such fee or liability is expressly contemplated by the terms of such Shared Contract. As to any Non-Assignable Shared Contract for any or all Liability or obligation arising from its (or its Subsidiary’s) breach which the Parties have not received consent as of the relevant Shared Contract Closing, (i) the Company agrees to which this Section 5.21 otherwise pertains; provided, however, that each of Seller and Buyer shall be entitled continue to indemnification from the other for the portion of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.7.
(b) If Seller or any Retained Subsidiaries, on the one hand, or Buyer or any of its Subsidiaries, on the other hand, receives any benefit or payment which under any Shared Contract was intended for the other, Seller and Buyer will use their respective reasonable best efforts tofollowing the Closing Date to obtain any required consent(s), and the Buyer agrees to cause cooperate in connection with same, (ii) the Parties agree to cooperate in good faith to take such actions as are reasonably necessary to avoid any breach or violation by a party as a result of any failure to obtain any required consent prior to the Closing and (iii) the Company, the Buyer, and their respective Subsidiaries to, deliver Affiliates shall use reasonable best efforts to develop and enter into a Transition Arrangement in respect of such benefit or payment to the other partyNon-Assignable Shared Contract.
(c) Notwithstanding anything to Following the contrary herein, the parties agree that the Shared Contracts listed on Schedule Section 5.21(c)(i) shall not be deemed to be Rolling Mill Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties agree to cooperate and use reasonable best efforts Closing prior to the Closing split and partial assignment to the Buyer or a Buyer Designee or replication of any Shared Contract, neither the Company nor any of its Affiliates shall, without the Buyer’s written consent (not to be unreasonably withheld, conditioned or delayed), (i) amend, modify (other than by automatic extension or renewal if deemed an amendment or modification of any such Contract) or waive in any respect, the terms of any Shared Contract, (ii) cancel or terminate any Shared Contract prior to the end of its natural term (excluding, for the avoidance of doubt, any expiration or non-renewal of such Shared Contract in accordance with no obligation on its terms or any termination of such Contract by any counterparty thereto other than the part Company or any of either party to pay its Affiliates); or (iii) otherwise waive, release or assign any costs rights, claims or fees benefits of the Company or any of its Affiliates under any Shared Contract, in each case, with respect to such assistanceitems (i), (ii) to effect and (iii), in any manner that adversely impacts the separation of such Shared Contracts. If such Shared Contracts are not separated at Closing, the parties agree to continue to provide each other with reasonable cooperation and assistance Business in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared Contractsany material respect.
Appears in 1 contract
Shared Contracts. (a) With respect to Shared Contractual Liabilities pursuant to, under or relating to a given Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or an Ancillary a Related Agreement, be allocated between Seller TDY and Buyer (or the Company, as applicable) as follows:
(i) If a Liability or obligation is incurred exclusively in respect of the Rolling Mill Tungsten Materials Business or the Excluded Businesses, such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill Tungsten Materials Business) or Seller TDY (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller TDY or Buyer, as the case may be, based on the relative proportions of total benefit received (over the term of the Shared Contract remaining as of the Closing Date, measured as of the date of the allocation) by the Rolling Mill Tungsten Materials Business or the Excluded Business under the relevant Shared Contract. Notwithstanding the foregoing, each of Seller TDY and Buyer shall be responsible for any or all Liability or obligation Liabilities arising from its (or its Subsidiary’s) breach of the relevant Shared Contract to which this Section 5.21 5.17 otherwise pertains; provided, however, that each of Seller TDY and Buyer shall be entitled to indemnification from the other for the portion of any Liability or obligation Liabilities arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.78.4.
(b) If Seller TDY or any Retained SubsidiariesSubsidiary, on the one hand, or Buyer or any of its Subsidiaries, on the other hand, receives any benefit or payment which under any Shared Contract was intended for the other, Seller TDY 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 5.17(c)(i) of the Seller’s Disclosure Schedule Section 5.21(c)(i) shall not be deemed to be Rolling Mill Tungsten Materials Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii)5.17(c)(ii) of the Seller’s Disclosure Schedule, be separated into separate Contracts between the appropriate Third Party third party and either the Excluded Businesses or the Rolling Mill Tungsten Materials Business. The parties agree to cooperate and use provide reasonable best efforts 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) to effect in effecting the separation of such Shared Contracts. If such Shared Contracts are not separated at Closing, the parties agree to continue to provide each other with reasonable cooperation and assistance in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared Contracts.
Appears in 1 contract
Shared Contracts. (a) With Section 2.10 lists all Contracts that the Stations and any other television stations owned by Seller or its Affiliates is party to, or has rights or obligations with respect to, or will be a party to, or have rights or obligations with respect to Shared Contractual Liabilities pursuant to, under or relating to in accordance with Section 5.01 (a given “Shared Contract, such ”). Each Shared Contractual Liabilities shall, unless otherwise allocated pursuant Contract to this Agreement or an Ancillary Agreement, be allocated between Seller assigned to and assumed by Buyer (or and included in the Company, as applicable) as follows:
(i) If a Liability or obligation is incurred exclusively in respect of the Rolling Mill Business or the Excluded Businesses, such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or BuyerPurchased Assets and Assumed Liabilities, as the case may be, based ) is marked with an asterisk on Disclosure Schedule Section 2.10 (hereafter an “Assumed Shared Contract”). At Closing Buyer shall assume only the relative proportions of total benefit received (over the term of the rights and obligations under such Assumed Shared Contract remaining as that are applicable to the Stations. The rights of the Closing Date, measured as of the date of the allocation) each other such television station owned by the Rolling Mill Business or the Excluded Business under the relevant Shared Contract. Notwithstanding the foregoing, each of Seller and Buyer shall be responsible for any or all Liability or obligation arising from its (or its Subsidiary’s) breach of the relevant Seller Affiliates with respect to such Shared Contract and the obligations of each other such television station owned by Seller or its Seller Affiliates to which this Section 5.21 otherwise pertains; provided, however, that each of Seller and Buyer shall be entitled to indemnification from the other for the portion of any Liability or obligation arising from any breach of the relevant such Shared Contract shall not be assigned to and assumed by the other party (or its Subsidiary), which indemnification Buyer and shall be separate from and not subject to the limitations set forth in Section 9.7constitute Excluded Contracts.
(b) If Buyer and Seller shall, as soon as practicable after the date of this Agreement make appropriate requests and shall use commercially reasonable efforts to obtain as expeditiously as possible reasonably comparable replacement or any Retained Subsidiariesseparated contracts (each, on a “Replacement Contract”) that provide to Buyer those rights relating to the one hand, or Buyer or any of its Subsidiaries, on the other hand, receives any benefit or payment Stations which arise under any an Assumed Shared Contract was intended for unless otherwise specified on Disclosure Schedule Section 2.10, subject to the other, Seller terms and Buyer will use their respective reasonable best efforts toconditions of such an Assumed Shared Contract (the “Shared Contract Rights”), and that allocate to cause their respective Subsidiaries to, deliver such benefit or payment Buyer after Closing solely those obligations relating to the other partyStations which arise under such Assumed Shared Contract unless otherwise specified on Disclosure Schedule Section 2.10, subject to the terms and conditions of such Assumed Shared Contract (the “Shared Contract Obligations”).
(c) Notwithstanding anything to the contrary herein, the parties agree that the Shared Contracts listed on Schedule Section 5.21(c)(i) Buyer shall not be deemed required to accept or agree to any Replacement Contract which contains any different terms than the Assumed Shared Contract that would make, or would be Rolling Mill Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoingreasonably likely to make, the parties have determined Replacement Contract materially more onerous in the aggregate or that it would materially reduce, or would be reasonably likely to materially reduce, the benefits available under the Assumed Shared Contract to which the Replacement Contract relates.
(d) In the event a Replacement Contract for an Assumed Shared Contract is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties agree to cooperate and use reasonable best efforts prior to not obtained by the Closing (with no obligation on and the part Closing occurs, such Assumed Shared Contract shall be held, as of either party to pay any costs or fees with respect to such assistance) to effect and from the separation of such Shared Contracts. If such Shared Contracts are not separated at ClosingClosing Date, the parties agree to continue to provide each other with reasonable cooperation and assistance in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party by Seller for the benefit of Buyer and the Shared Contract Obligations shall be performed by Buyer in Seller’s name and all Shared Contract Rights shall be for Buyer’s account. Seller shall take or cause to be taken at Buyer’s expense such actions in its name or otherwise as Buyer may reasonably request so as to provide Buyer with the Shared Contract Rights (including the collection of money or other consideration that becomes due and payable under the Shared Contracts) so long as Buyer fully cooperates with Seller and promptly reimburses Seller for all payments made by Seller (with Buyer’s prior approval) in connection therewith, and Seller shall promptly pay over to Buyer all money or other consideration received by it in respect of all Assumed Shared Contracts (to the extent relating to the Stations).
Appears in 1 contract
Sources: Asset Purchase Agreement
Shared Contracts. (a) Notwithstanding anything to the contrary herein, Shared Contracts and any rights or obligations thereunder shall not be deemed to be assets of the Group Companies. The Parties shall use commercially reasonable efforts to cause the Shared Contracts set forth in Schedule 5.04 (“Mirrored Shared Contracts”) to be replaced with separate Contracts that provide that Sellers (with respect to the Retained Companies) and Buyer (with respect to the Group Companies) receive such rights and obligations under a replacement Contract as are substantially similar to those contract rights and obligations used by it (or, in the case of Buyer, used by Sellers with respect to the Group Companies) in the conduct of its business immediately prior to the Closing Date. The Parties agree to cooperate and provide each other with reasonable assistance in effecting such separation of such Mirrored Shared Contracts for a period of 12 months following the Closing Date.
(b) Buyer shall be solely responsible for any additional Buyer-related costs or fees arising from and under a replacement Contract, in connection with the separation of a Mirrored Shared Contract, or in connection with any arrangement described in this Section 5.04. Until any such Mirrored Shared Contract is separated, to the extent permissible under Law and the terms of such Mirrored Shared Contract, each of the Parties shall (i) assume and perform the Liabilities and obligations under such Mirrored Shared Contract relating to its respective business or that of its Affiliates (and shall promptly reimburse the other Party for any reasonable expenses relating thereto incurred by the other Party or its Affiliates), (ii) hold in trust for the benefit of the other Party, and shall promptly forward to the other Party, any monies or other benefits received pursuant to such Mirrored Shared Contract relating to the business of the other Party or its Affiliates and (iii) endeavor to institute alternative arrangements intended to put the Parties in substantially the same economic position as if such Mirrored Shared Contract were separated as of the Closing Date; provided, however, that if the Parties are not able to effect the separation of any Mirrored Shared Contract within 12 months after the Closing Date, then Sellers and their Affiliates may freely terminate such Mirrored Shared Contract and each Party will have no further obligations to the other Party with respect thereto (including with respect to the Mirrored Shared Contractual Liabilities set forth in Section 5.04(c) below).
(c) With respect to Shared Contractual Liabilities pursuant to, under or relating to a given Mirrored Shared ContractContract (“Mirrored Shared Contractual Liabilities”), such Mirrored Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreementother Transaction Document, be allocated between Seller Sellers, on the one hand, and Buyer (or Buyer, on the Companyother hand, as applicable) as follows:
(i) If first, to the extent a Mirrored Shared Contractual Liability or obligation is incurred exclusively in respect of a benefit received by the Rolling Mill Business Retained Companies or the Excluded BusinessesGroup Companies, such Liability shall constitute a Liability of Sellers or obligation shall be allocated to Buyer (in respect Liability of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);Buyer, respectively; and
(ii) If second, to the extent a Mirrored Shared Contractual Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Sellers, on the one hand, and to Buyer, on the other hand, as the case may be, based on the relative proportions proportion of total benefit benefits received ((A) to the extent the Liabilities relate to a specific period, over such period and (B) otherwise over the term of the Mirrored Shared Contract remaining as of the Closing DateContract, measured as of up to the date of the allocation) by the Rolling Mill Business or the Excluded Business under the relevant Shared Contract. Notwithstanding the foregoing, each of Seller and Buyer shall be responsible for any or all Liability or obligation arising from its (or its Subsidiary’s) breach of the relevant Shared Contract to which this Section 5.21 otherwise pertains; provided, however, that each of Seller and Buyer shall be entitled to indemnification from the other for the portion of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.7.
(b) If Seller or any Retained SubsidiariesCompanies, on the one hand, or Buyer the Group Companies, on the other hand, under the relevant Mirrored Shared Contract.
(d) If Sellers, on the one hand, or any of its SubsidiariesBuyer, on the other hand, receives any benefit or payment which under any Mirrored Shared Contract which was intended for the otherother Party, Seller and Buyer the Parties will use their respective commercially reasonable best efforts toto deliver, and to cause their respective Subsidiaries to, deliver transfer or otherwise afford such benefit or payment to the other partyParty.
(c) Notwithstanding anything to the contrary herein, the parties agree that the Shared Contracts listed on Schedule Section 5.21(c)(i) shall not be deemed to be Rolling Mill Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties agree to cooperate and use reasonable best efforts prior to the Closing (with no obligation on the part of either party to pay any costs or fees with respect to such assistance) to effect the separation of such Shared Contracts. If such Shared Contracts are not separated at Closing, the parties agree to continue to provide each other with reasonable cooperation and assistance in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared Contracts.
Appears in 1 contract
Sources: Equity Purchase Agreement (Topgolf Callaway Brands Corp.)
Shared Contracts. (a) Buyer acknowledges that Dublin or its Subsidiaries are party to certain Contracts (including sales orders and purchase orders) that relate both to the Business (other than in a de minimis respect) and one or more of the Excluded Dublin Businesses (other than in a de minimis respect) (each, including those listed on Section 5.10(a) of the Dublin Disclosure Schedule, but excluding (x) the Prior Transaction Agreements (other than Severable Prior Transaction Agreements), (y) any Contract solely among Dublin and its Subsidiaries and (z) Contracts that are IT Assets, a “Shared Contract”). Prior to the Closing, and until the expiration or termination date of the applicable Shared Contract, each of Dublin and Buyer shall, and shall cause their respective Subsidiaries to, use their respective commercially reasonable efforts to obtain from, and to cooperate in obtaining from, and shall, and shall cause their respective Subsidiaries to, enter into with, each third party to a Shared Contract, either (i) a separate contract or agreement (a “New Contract”) that allocates the rights and obligations of Dublin and its Subsidiaries under each such Shared Contract as between the Business, on the one hand, and the Excluded Dublin Businesses, on the other hand, and which are otherwise substantially similar in all material respects to such Shared Contract (or on terms that are otherwise reasonably acceptable to Buyer and Dublin), or (ii) a contract or agreement effective as of the Closing (the “Partial Assignments and Releases”) that (A) assigns the rights and obligations of Dublin or its applicable Affiliates under such Shared Contract solely to the extent related to the Business and arising after the Closing to Buyer and its applicable Subsidiaries and (B) releases Dublin and its Subsidiaries, and Buyer and its Affiliates (including the Transferred Subsidiaries), as applicable, from all liabilities or obligations with respect to the Business or the Excluded Dublin Businesses, respectively, that arise after the Closing (or on terms that are otherwise reasonably acceptable to Buyer and Dublin). Any New Contracts that relate to the Business (the “New Business Contracts”) shall be entered into by Buyer or one of its Subsidiaries effective as of the Closing and shall allocate to Buyer or such Subsidiary (as applicable) all rights and obligations of Dublin and its Subsidiaries (as applicable) under the applicable Shared Contract being replaced to the extent such rights and obligations relate to the Business and arise after the Closing. All purchase commitments under the Shared Contracts shall be allocated under the New Business Contracts or the Partial Assignments and Releases as between the Business, on the one hand, and the Excluded Dublin Businesses, on the other hand, in an equitable manner that is mutually and reasonably agreed to by Dublin and Buyer. In connection with the entering into of New Business Contracts, the Parties shall use their commercially reasonable efforts to negotiate that Dublin and its Subsidiaries, and Buyer and its Affiliates (including the Transferred Subsidiaries), as applicable, are released by the third party with respect to all liabilities and obligations to the extent related to the Business or the Excluded Dublin Businesses, respectively, and arising after the Closing.
(b) In the event that any third party under a Shared Contract does not agree to enter into a New Business Contract or Partial Assignment and Release consistent with Section 5.10(a), the Parties shall until the expiration or termination date of the applicable Shared Contract, cooperate with each other and, following good faith discussions between the Parties, seek to obtain or structure mutually acceptable alternative arrangements for the applicable member of Dublin or any of its Subsidiaries (or Buyer or its Affiliates) and the applicable member of Dublin or any of its Subsidiaries (or its Affiliates) receiving rights and benefits, and bearing liabilities and obligations, to the extent related to its respective business (provided that such arrangements shall not result in a breach or violation of such Shared Contract by Dublin or its Subsidiaries). Such alternative arrangements may include a subcontracting, sublicensing, subleasing or other similar arrangement under which Buyer and its applicable Subsidiaries would, in compliance with Law, obtain the benefits under, and, to the extent first arising after the Closing, assume the obligations and bear the economic burdens associated with, such Shared Contract solely to the extent related to the Business (or applicable portion thereof) and under which Dublin and its Subsidiaries would, upon the request of Buyer, enforce for the benefit (and at the expense) of Buyer and its Subsidiaries any and all of Dublin’s and its Subsidiaries’ rights against such third party under such Shared Contract solely to the extent related to the Business (or applicable portion thereof), and Dublin and its Subsidiaries would promptly pay to Buyer and its applicable Subsidiaries when received all monies received by them (net of any applicable Taxes imposed on Dublin and its Subsidiaries) from time to time under such Shared Contract solely to the extent related to the Business (or applicable portion thereof).
(c) With respect to Shared Contractual Liabilities Liabilities, rights and benefits pursuant to, under or relating to a given Shared Contract, relating to occurrences from and after the Closing, to the extent a New Contract or a Partial Assignment and Release has been entered into in respect to such Shared Contractual Liabilities Contract, such Liabilities, rights and benefits shall, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreementany other Acquisition Document, be allocated between Seller Dublin and Buyer (or the Company, as applicable) as follows:
(i) If a Liability is incurred, or obligation if a right or benefit is incurred obtained, exclusively in respect of the Rolling Mill Business or exclusively in respect of the Excluded Dublin Businesses, such Liability Liability, right or obligation benefit shall be allocated to Buyer or its applicable Subsidiary (including the Transferred Subsidiaries) (in respect of the Rolling Mill Business) or Seller Dublin or its applicable Subsidiary (in respect of the Excluded Dublin Businesses);
(ii) If a Liability Liability, right or obligation benefit cannot be so allocated under clause (i) above, such Liability Liability, right or obligation benefit shall be allocated to Seller Dublin or BuyerBuyer or one or more of their respective Subsidiaries, as the case may be, based on the relative proportions of total benefit received (over the term of the Shared Contract remaining as of the Closing Date, measured as of the date of the allocation) by the Rolling Mill Business or the Excluded Business Dublin Businesses (as applicable) under the relevant Shared Contract. Notwithstanding the foregoing, each of Seller Dublin and Buyer shall be responsible for any or all Liability Liabilities to the extent related to, resulting from, or obligation arising from out of its (or its Subsidiary’sSubsidiaries’, including, with respect to Buyer and the Transferred Subsidiaries) direct or indirect breach of of, or actions under, the relevant Shared Contract to which this Section 5.21 5.10 otherwise pertains; provided, however, that each of Seller and Buyer shall be entitled to indemnification from the other for the portion of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.7.
(bd) If Seller Dublin or any Retained of its Subsidiaries, on the one hand, or Buyer or any of its Subsidiaries (including the Transferred Subsidiaries), on the other hand, receives any benefit or payment which under any Shared Contract was intended for the other, Seller Dublin and Buyer will use their respective commercially reasonable best efforts to, and to cause their respective Subsidiaries toto (including, with respect to Buyer, the Transferred Subsidiaries), deliver such benefit or payment to the other partyParty.
(ce) None of Dublin, any Transferred Subsidiary or their Affiliates shall be required to commence any litigation or offer or pay any money or otherwise grant any accommodation (financial or otherwise) to any third Person to (x) obtain any New Contract or Partial Assignment and Release with respect to any Shared Contract, as the case may be, or (y) obtain any Regulatory Approvals necessary to enter into an acceptable alternative arrangement contemplated by Section 5.10(b); provided, however, that any Party to which the benefit of a New Contract, Partial Assignment and Release or acceptable alternative arrangement would inure pursuant to this Section 5.10(e) may request that the Party that is allocated such Shared Contract as an Acquired Asset or Excluded Asset commence litigation, which request shall be considered in good faith by such Party; provided, further, that such Party’s good faith determination not to commence litigation shall not in and of itself constitute a breach of this Section 5.10(e).
(f) Notwithstanding anything to the contrary herein, the parties Parties agree that the Shared Contracts listed on Section 5.10(f) of the Dublin Disclosure Schedule Section 5.21(c)(i(collectively “Excluded Shared Contracts”) shall not be deemed to be Rolling Mill Acquired Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties agree to cooperate and use reasonable best efforts prior to the Closing (with no obligation on the part of either party to pay any costs or fees with respect to such assistance) to effect the separation of such Shared Contracts. If such Shared Contracts hereunder.
(g) The provisions set forth on Section 5.10(g) of the Dublin Disclosure Schedule are not separated at Closing, the parties agree to continue to provide each other with reasonable cooperation and assistance in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared Contractshereby incorporated into this Agreement.
Appears in 1 contract
Shared Contracts. Seller, on the one hand, and Buyer, on the other hand, shall, and shall cause their respective Affiliates to, cooperate with each other and shall use their commercially reasonable efforts to cause the Shared Contracts to be amended and/or replaced with separate contracts (the “Replacement Contracts”) that provide that (a) With Seller or any Retained Entity designated by Seller receives contract rights and is bound by obligations under the Replacement Contracts that are substantially similar to those contract rights and obligations under the Shared Contracts applicable to the conduct of the Retained Business prior to the Closing and (b) any Purchased Subsidiary receives contract rights and is bound by obligations under the Replacement Contracts that are substantially similar to those contract rights and obligations under the Shared Contracts applicable to the conduct of the Business prior to the Closing. Buyer and Seller shall cooperate and provide each other with reasonable assistance in effecting such separation of the Shared Contracts prior to the Closing and, if not completed by the Closing with respect to Shared Contractual Liabilities pursuant to, under or relating to a given any Shared Contract, for a period of six (6) months following the Closing Date. Notwithstanding the foregoing, none of Seller, Buyer or any of their respective Affiliates shall be required to expend any material amount of money, incur any Liabilities, commence any Action, or offer or grant any accommodation (financial or otherwise) to any third party, including any accommodation or arrangement to remain secondarily liable or contingently liable for any Liability of the other, in order to effect the separation of a Shared Contract or obtain any Replacement Contract. If Buyer and Seller are not able to effect the separation of a Shared Contract prior to the Closing, then after the Closing, until any such Shared Contractual Liabilities Contract is separated, to the extent permissible under Law and under the terms of such Shared Contract, Buyer and Seller shall, unless otherwise allocated or shall cause one of their Affiliates to, (i) assume and perform the Liabilities under such Shared Contract relating to (A) in the case of Buyer, the Business and (B) in the case of Seller, the Retained Business (and in each case, the applicable Party shall promptly reimburse the other Party for any reasonable expenses relating thereto incurred by the other Party or its Subsidiaries), (ii) hold in trust for the benefit of the other Party, and shall promptly forward to the other Party, any monies or other benefits received pursuant to this Agreement such Shared Contract 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 Shared Contract was separated as described above; provided that, notwithstanding the foregoing, following the Closing, (x) no Party shall have any obligation to renew any Shared Contract upon the expiration or termination thereof and (y) to the extent any such Shared Contract contains an Ancillary Agreement“evergreen” provision that automatically renews such Shared Contract unless terminated or cancelled by either party thereto, the applicable Party shall not be prohibited from terminating or canceling such Shared Contract as permitted pursuant to the terms thereof. Notwithstanding anything herein to the contrary, with respect to Liabilities arising under or resulting from any Shared Contract (whether first arising prior to or after the Closing, and including any such Liability under a Shared Contract as to which a Replacement Contract is not obtained prior to Closing), including any Liabilities resulting from any products or services provided under such Shared Contract, from and after the Closing (1) to the extent such Liabilities are related exclusively to the Business, Buyer and its Subsidiaries (including the Purchased Subsidiaries) shall be responsible for such Liabilities and shall indemnify and hold harmless Seller and its Affiliates (including the Retained Entities) for such Liabilities, (2) to the extent such Liabilities are related exclusively to the Retained Business, Seller and its Affiliates (including the Retained Entities) shall be responsible for such Liabilities and shall indemnify and hold harmless Buyer and its Affiliates (including the Purchased Subsidiaries) for such Liabilities and (3) to the extent such Liabilities are not clearly exclusively related to either the Business or the Retained Business, such Liabilities shall be allocated between Seller the Business, on the one hand, and Buyer (or the CompanyRetained Business, as applicable) as follows:
(i) If a Liability or obligation is incurred exclusively in respect of on the Rolling Mill Business or the Excluded Businesses, such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Buyer, as the case may beother hand, based on the relative proportions of total benefit benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term of the such Shared Contract remaining as of the Closing DateContract, measured as of up to the date of the allocation, without duplication) by the Rolling Mill Business or the Excluded Business under the relevant Shared Contract. Notwithstanding the foregoing, each of Seller and Buyer shall be responsible for any or all Liability or obligation arising from its (or its Subsidiary’s) breach of the relevant Shared Contract to which this Section 5.21 otherwise pertains; provided, however, that each of Seller and Buyer shall be entitled to indemnification from the other for the portion of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.7.
(b) If Seller or any Retained SubsidiariesBusiness, on the one hand, or Buyer or any of its Subsidiariesthe Retained Business, on the other hand, receives any benefit or payment which under any such Shared Contract was intended and (A) Buyer and its Subsidiaries (including the Purchased Subsidiaries) shall be responsible for such Liabilities so allocated to the other, Business and shall indemnify and hold harmless Seller and Buyer will use their respective reasonable best efforts to, its Affiliates (including the Retained Entities) for such Liabilities so allocated and to cause their respective Subsidiaries to, deliver (B) Seller and its Affiliates (including the Retained Entities) shall be responsible for such benefit or payment Liabilities so allocated to the other party.
(c) Notwithstanding anything to the contrary herein, the parties agree that the Shared Contracts listed on Schedule Section 5.21(c)(i) shall not be deemed to be Rolling Mill Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties agree to cooperate and use reasonable best efforts prior to the Closing (with no obligation on the part of either party to pay any costs or fees with respect to such assistance) to effect the separation of such Shared Contracts. If such Shared Contracts are not separated at Closing, the parties agree to continue to provide each other with reasonable cooperation and assistance in effecting the separation of such Shared Contracts Retained Business and shall treat indemnify and hold harmless Buyer and its Affiliates (including the same as Shared Contracts or take Purchased Subsidiaries) for such reasonable steps as are necessary to provide each party the benefit of such Shared ContractsLiabilities so allocated.
Appears in 1 contract
Shared Contracts. (a) With respect to Shared Contractual Liabilities pursuant Each of Buyer and Seller acknowledges that Seller or its Affiliates are party to, under and one or relating to a given Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, be allocated between Seller and Buyer (or the Company, as applicable) as follows:
(i) If a Liability or obligation is incurred exclusively in respect more of the Rolling Mill Business Company Entities is party to or bound by or have the Excluded Businesses, such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Buyer, as the case may be, based on the relative proportions of total benefit received (over the term benefits of the Shared Contract remaining as of the Closing Date, measured as of the date of the allocation) by the Rolling Mill Business or the Excluded Business under the relevant Shared ContractContracts. Notwithstanding the foregoing, each of Seller and Buyer shall be responsible for any or all Liability or obligation arising from its (or its Subsidiary’s) breach of the relevant Shared Contract to which this Section 5.21 otherwise pertains; provided, however, that each of Seller and Buyer shall be entitled to indemnification from the other for the portion of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject Prior to the limitations Closing, Seller shall, and shall cause its Affiliates to, use reasonable best efforts to, with respect to the Shared Contracts set forth in Section 9.75.11(a) of the Seller Disclosure Schedule (the “Shared Contract Schedule” and the Shared Contracts set forth on such schedule, the “Material Shared Contracts”), (i) (A) in respect of those Shared Contracts set forth in Section 5.11(a)(i) of the Seller Disclosure Schedule, assign or partially assign such Shared Contract and the rights and obligations under such Shared Contract, to the appropriate Company Entity or ensure that the applicable Company Entities continue to be party to, and entitled to the rights and benefits under, such Shared Contract at and after the consummation of the Closing, and (B) obtain all necessary Authorizations from, and make all necessary notifications to, any contractual counterparty to such Shared Contract that may be required in connection with the consummation of the Transactions or the actions set forth in clause (i)(A) above, and (ii) in respect of those Shared Contracts set forth in Section 5.11(a)(ii) of the Seller Disclosure Schedule, either (x) replace such Shared Contract with separate Contracts in respect of each of the Business and the Retained Business that are with the same third parties as the applicable Shared Contract being replaced (unless otherwise consented to by the Buyer, which consent is not to be unreasonably withheld, conditioned or delayed), or (y) otherwise provide the Company Entities the rights and obligations that are substantially equivalent in the aggregate to those rights and obligations currently received by any Company Entity under such Shared Contract in the conduct of the Business prior to the Closing (a Contract meeting the requirements set forth under either of clause (ii)(x) or clause (ii)(y), a “Replacement Contract”).
(b) If, following the Closing, Buyer provides written notice to Seller identifying any Shared Contract that is not set forth on the Shared Contracts Schedule, is currently in effect, will not expire or terminate by its terms on or prior to the Closing, and that is primarily related to the Business and involved annual spend by the Company Entities of $1,500,000 or more in the past fiscal year (each such Shared Contract, a “Business-Focused Shared Contract”), then, subject to Applicable Law, following delivery of such written notice, each of the Buyer and the Seller shall negotiate in good faith to mutually agree to a lawful arrangement under such Business-Focused Shared Contract in connection with the Transactions under which Buyer and/or the applicable Company Entities would obtain the benefits and assume the obligations under the applicable Shared Contract, in each case, with respect to, or otherwise as relating to, the Business, in accordance with this Agreement (and the Shared Contract Schedule shall be deemed to be amended and restated to provide for such disposition); provided that, if Buyer and Seller cannot agree to a proposed disposition within 15 calendar days of Buyer’s delivery of such written notice, the Shared Contract Schedule shall be deemed to be amended and restated to set forth such Shared Contracts in Section 5.11(a)(i) of the Seller Disclosure Schedules.
(c) (i) If Seller and its applicable Affiliates, despite the use of their respective reasonable best efforts, are unable to implement the results contemplated by Section 5.11(a) prior to the Closing, then following the Closing until the earlier to occur of the first anniversary of the Closing Date and the date of termination or expiration of the applicable Material Shared Contract in accordance with its terms and conditions, (A) Seller shall, and shall cause its applicable Affiliates to, use their respective reasonable best efforts to either (x) assign or partially assign such Shared Contract in accordance with Section 5.11(a)(i), (y) enter into a Replacement Contract in respect of such Shared Contract in accordance with Section 5.11(a)(ii), or (z) otherwise cause the same economic and operational rights, benefits, liabilities, obligations and burdens of the Material Shared Contract to be passed to and assumed, performed and paid by the relevant Company Entity as if such Material Shared Contract had been assigned or partially assigned to a Company Entity (such arrangement, a “Back-to-Back Arrangement”), in which case of this clause (z), until the earlier to occur of the first anniversary of the Closing Date and the date of termination or expiration of the applicable Material Shared Contract in accordance with its terms and conditions, Seller shall and shall cause its Affiliates (other than the Company Entities) not to, amend, terminate, modify or waive any right pursuant to any Material Shared Contract which is subject to a Back-to-Back Arrangement under this Section 5.11(c)(i) in a manner that would adversely affect the Business (other than to a de minimis extent), without Buyer’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed; provided that, for the avoidance of doubt, Seller and its Affiliates may terminate any statement of work or purchase order under such Material Shared Contract issued by or to Seller or its Affiliates (other than the Company Entities), and (ii) Buyer shall, and shall cause Buyer’s Affiliates to, use reasonable best efforts to facilitate Seller’s efforts to assign or partially assign such Material Shared Contract and the rights and obligations under such Material Shared Contract to the appropriate Company Entity, to replace any such Material Shared Contract with a Replacement Contract or to otherwise implement a Back-to-Back Arrangement in respect of any such Material Shared Contract, as applicable.
(d) Without in any way limiting Section 5.11(a), notwithstanding anything in this Agreement to the contrary, this Agreement shall not constitute an agreement to assign, partially assign, novate or replace any Shared Contract or any claim or right or any benefit arising thereunder or resulting therefrom if such assignment, partial assignment, novation or replacement, without the consent of a third party thereto, would constitute a breach or other contravention of such Shared Contract or in any way adversely affect the rights of Seller, the Company or any of their respective Affiliates thereunder. If such consent is not obtained, Seller and Buyer will, until the first anniversary of the Closing Date (or, if earlier, until an applicable Shared Contract expires or is terminated by the applicable counterparty pursuant to its terms), use reasonable best efforts to establish mutually agreeable and lawful arrangements under which Buyer and/or the applicable Company Entities would obtain the benefits and assume the obligations under the applicable Shared Contract, in each case, with respect to, or otherwise as relating to, the Business, in accordance with this Agreement, including sub-contracting, sub-licensing, or sub-leasing to Buyer, or under which Seller would enforce for the benefit of Buyer, with Buyer assuming Seller’s obligations which relate to the Business, any and all corresponding rights of Seller that relate to the Business against a third party thereto.
(e) In connection with any Shared Contract that is (x) assigned, in whole or in part, to Buyer, the Company or any of their respective Subsidiaries, or (y) sub-contracted, sub-licensed or sub-leased or under which Seller or any Retained of its Affiliates otherwise passes along any benefits relating to the Business thereunder, including pursuant to any Back-to-Back Arrangements in respect of such Shared Contract, in each case whether in whole or in part, to Buyer, the Company or any of their respective Subsidiaries, Buyer shall perform, and cause to be performed, all of its or the Company’s or Subsidiary’s (as applicable) obligations thereunder and shall (x) promptly, but in any event within 30 days of being invoiced therefor, reimburse Seller for any and all reasonable and documented out-of-pocket fees, costs and expenses incurred by Seller or any of its Affiliates under any such Shared Contract or any Back-to-Back Arrangement in respect of a Shared Contract, as applicable, to the extent related to the Business and (y) hereby indemnify Seller and its Affiliates, and otherwise hold them harmless from, any failure to perform any such obligations to the extent related to the Business.
(f) From the date hereof until the date that is the earlier of the first anniversary of the Closing Date and the date of termination or expiration of the applicable Shared Contract in accordance with its terms and conditions, Seller and its Affiliates (other than the Company Entities), on the one hand, or and Buyer or any of its Subsidiaries, and the Company Entities on the other handhand shall reasonably cooperate, receives in good faith, to assist Buyer or the Company Entities to (x) to the extent requested in writing by Buyer to Seller, enter into Replacement Contracts in respect of any benefit Shared Contracts with customers, vendors and merchandisers of the Business that are not Material Shared Contracts (which Replacement Contracts shall be effective no earlier than the Closing Date), and (y) to the extent any such Replacement Contract is entered into and subject to Applicable Law and the terms and conditions of the applicable purchase order, assign any outstanding purchase orders under the applicable Shared Contract that primarily relate to the Business to a Company Entity.
(g) Notwithstanding anything in this Agreement that may be deemed to the contrary, (i) neither Seller, Buyer nor any of their respective Affiliates shall be required to expend money, incur any liability, commence any litigation or payment which under offer or grant any accommodation (financial, contractual or otherwise) to any third party to obtain any such consent to separate, replace, assign or partially assign a Shared Contract, (ii) the separation, replacement, assignment, or partial assignment of any Shared Contract was intended for the other, Seller 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 Schedule Section 5.21(c)(i) shall not be deemed a condition to be Rolling Mill Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, obligation of the parties have determined that it is advisable that certain Shared Contractshereto to consummate this Agreement, which are identified on Schedule Section 5.21(c)(ii), be separated into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties agree other Transaction Agreements, or the Transactions, and (iii) failure to cooperate separate, replace, assign or partially assign any Shared Contract shall not, in and use reasonable best efforts prior of itself, give rise to the Closing (with no obligation on the part a breach of either party to pay any costs or fees this Agreement and shall not be taken into account with respect to such assistance) any condition to effect the separation of such Shared Contracts. If such Shared Contracts are not separated at ClosingClosing set forth in Article 8, the parties agree or any right to continue terminate this Agreement pursuant to provide each other with reasonable cooperation and assistance in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared ContractsArticle 9.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Dollar Tree, Inc.)
Shared Contracts. (a) With respect to Shared Contractual Liabilities pursuant to, under or directly relating to a given Shared Contract, such Shared Contractual Liabilities Contracts shall, unless otherwise allocated pursuant to Section 7.15(a) of the Delta Disclosure Schedule, this Agreement or an Ancillary a Related Agreement, be allocated between Seller Delta and Buyer (or the Company, as applicable) Newco as follows:
(i) If a Liability or obligation is incurred exclusively in respect of the Rolling Mill DPP Business or the Excluded Businesses, such Liability or obligation shall be allocated to Buyer Newco (in respect of the Rolling Mill DPP Business) or Seller Delta (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller Delta or BuyerNewco, 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 Rolling Mill DPP Business or the Excluded Business under the relevant Shared Contract. Notwithstanding the foregoing, each of Seller Delta and Buyer Newco shall be responsible for any or all Liability or obligation Liabilities arising from its (or its Subsidiary’s) breach of the relevant Shared Contract to which this Section 5.21 7.15 otherwise pertains; provided, however, that each of Seller and Buyer shall be entitled to indemnification from the other for the portion of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.7.
(b) If Seller Delta or any Retained SubsidiariesSubsidiary, on the one hand, or Buyer Newco or any of its Subsidiaries (including the Transferred DPP Companies and their Subsidiaries), on the other hand, receives any benefit or payment which under any Shared Contract was intended for the other, Seller Delta and Buyer Newco 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 7.15(c)(i) of the Delta Disclosure Schedule Section 5.21(c)(i) shall not be deemed to be Rolling Mill DPP Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii)7.15(c)(ii) of the Delta Disclosure Schedule, be separated into separate Contracts between the appropriate Third Party third party and either the Excluded Businesses or the Rolling Mill DPP Business. The parties agree to cooperate and use provide reasonable best efforts 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) to effect in effecting the separation of such Shared Contracts. If such Notwithstanding anything to the contrary herein, without the prior written consent of Newco, no Transferred DPP Company or any Subsidiary of the Transferred DPP Companies shall enter into any new Shared Contract after the date hereof or any separate Contract with respect to any or all of the Shared Contracts are not separated at Closing, set forth on Section 7.15(c)(ii) of the parties agree Delta Disclosure Schedule to continue to provide each other with reasonable cooperation and assistance in effecting the separation extent that such new or separate Contract (x) is a sourcing Contract containing “take or pay” obligations of such Shared Contracts Transferred DPP Company or respective Subsidiary thereof or (y) requires payment of any costs by such Transferred DPP Company or respective Subsidiary thereof to terminate such separate Contract.
(d) As used in this Section 7.15, Newco’s Subsidiaries shall include the Transferred DPP Companies and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared Contractstheir Subsidiaries.
Appears in 1 contract
Sources: Contribution Agreement (Patheon Inc)
Shared Contracts. (a) With The parties acknowledge that Seller and its Subsidiaries (other than the Company) are parties to certain contracts listed on Schedule 6.13 that relate to both the operations or conduct of the Business as well as other businesses of one or more of Seller and its Subsidiaries (other than the Company) but that will remain with Seller and its Affiliates after the Closing (the “Shared Contracts”). Prior to Closing, upon Buyer’s written request with respect to any such Shared Contractual Contract, the parties shall cooperate and shall use their respective commercially reasonable efforts (i) to obtain the agreement of the counterparties to each such Shared Contract to enter into a new contract (or contract amendment, as applicable), effective as of the Closing Date or as soon thereafter as is reasonably possible, pursuant to which Buyer or the Company will receive substantially the same goods, services and Intellectual Property provided to Seller and its Subsidiaries as of the Signing Date pursuant to the Shared Contract (the “Shared Contract Rights”) on terms and conditions substantially similar to those contained in the Shared Contract as of the Signing Date (each, a “Replacement Contract”), (ii) to cause the applicable counterparty to release Seller and its applicable Subsidiaries from any obligations of Buyer or the Company under the Shared Contract that become the obligation of Buyer or the Company under the Replacement Contract and (iii) to cause the applicable counterparty to release the Company from any obligations of Seller and its applicable Subsidiaries under the Shared Contract.
(b) If, on the Closing Date, any Shared Contract has not been separated pursuant to Section 6.13(a), the parties shall (i) until the date that is twelve months following the Closing Date, cooperate and shall use their respective commercially reasonable efforts to separate any such Shared Contract in accordance with clauses (i), (ii) and (iii) of Section 6.13(a) and (ii) until the earlier of such time as any such Shared Contract is separated or the date that is twelve months following the Closing Date, cooperate in a mutually agreeable arrangement (A) under which the Company would, in compliance with applicable Law and the terms of the relevant Shared Contract, as applicable, obtain the benefits and assume the obligations and other Liabilities pursuant toassociated with the Shared Contract, including through the Transition Services Agreement, subcontracting, sublicensing or subleasing to the Company and (B) under or relating which Seller and its Subsidiaries shall operate any such Shared Contract in the Ordinary Course of Business in accordance with the terms of such Shared Contract. At Buyer’s written request from time to a given time, Seller will use commercially reasonable efforts to enforce for the benefit and account of the Company any and all of the rights under such Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, be allocated between Seller and Buyer (or that in each case each party is put in the Company, same economic position as applicable) as follows:
(i) If a Liability or obligation is incurred exclusively in respect of the Rolling Mill Business or the Excluded Businesses, if such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Buyer, as the case may be, based on the relative proportions of total benefit received (over the term of the Shared Contract remaining had been separated as of the Closing Date, measured as of the date of the allocation) by the Rolling Mill Business or the Excluded Business under the relevant Shared Contract. Notwithstanding the foregoing, each of Seller and Buyer shall be responsible for any or all Liability or obligation arising from its (or its Subsidiary’s) breach of the relevant Shared Contract to which this Section 5.21 otherwise pertains; provided, however, that each of Seller and Buyer shall be entitled to indemnification from the other for the portion of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.7.
(b) If Seller or any Retained Subsidiaries, on the one hand, or Buyer or any of its Subsidiaries, on the other hand, receives any benefit or payment which under any Shared Contract was intended for the other, Seller 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, in this Agreement: (i) no Replacement Contract shall impose any Liability on Seller or its Affiliates after the parties agree that the Shared Contracts listed on Schedule Section 5.21(c)(iClosing; (ii) neither Seller nor any of its Affiliates shall not be deemed to be Rolling Mill Assets hereunder and are Excluded Assets required (the “Excluded Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties agree to cooperate and use reasonable best efforts prior to the Closing (with no obligation on the part of either party A) to pay any costs or fees third parties to obtain consent with respect to such assistance) to effect the separation of such any Shared Contracts. If such Shared Contracts are not separated at ClosingContract or entry into a Replacement Contract, the parties agree or (B) to continue commence or participate in any Litigation or offer or grant any accommodation (financial or otherwise) to any third party to provide each other Buyer or the Company with reasonable cooperation the benefits under a Shared Contract or with a Replacement Contract; and assistance (iii) no representation, warranty or covenant (subject to compliance with Section 6.13(a) and Section 6.13(b)) of Seller contained in effecting the separation Transaction Agreements shall be breached, or deemed breached, no condition shall be deemed not satisfied, and neither Seller nor any of such Shared Contracts and shall treat its Affiliates will have any Liability whatsoever to Buyer or any of its Affiliates, based on, arising out of or relating to (x) the same as failure to obtain any Replacement Contract, (y) any termination of any Shared Contracts or take such reasonable steps as are necessary (z) any Litigation commenced or threatened by or on behalf of any Person arising out of or relating to provide each party the benefit failure to obtain any Replacement Contract or the termination of such any Shared ContractsContract.
Appears in 1 contract
Shared Contracts. Seller shall use its commercially reasonable efforts, prior to the Closing and for a period of no longer than the later of [***] (a[***]) With respect months and [***] following the Closing (unless otherwise agreed under the Transition Services Agreement), to Shared Contractual Liabilities pursuant cause each Contract set forth on Schedule 5.05, as such Schedule may be updated by Seller not less than three Business Days prior to Closing to include any Contracts that are material to, under but not exclusively used in, the Operations and that are entered into by Seller or any of its Affiliates after the date of this Agreement to the extent Purchaser does not object to such updates, in its reasonable discretion (each such Contract, a “Shared Contract”) to be equitably apportioned (such that the rights and obligations of Purchaser and Seller are separated) through appropriate amendments and new Contracts entered into prior to, on or after the Closing Date so that Purchaser shall be entitled to the economic rights and benefits, and shall be responsible for any related economic burden, relating to a given Shared Contractthe Operations thereunder and Seller or its applicable Affiliate shall be entitled to the economic rights and benefits, and shall be responsible for any related economic burden, relating to the balance of the subject matter of such Shared Contractual Liabilities shallContract (including any assets, unless otherwise allocated properties or business not required to be transferred to Purchaser pursuant to this Agreement or an Ancillary Agreementany Other Transaction Document). Seller shall consult with Purchaser with respect to the amendment of such Shared Contracts and the negotiation of such new Contracts and, with respect to any amended Shared Contract or new Contract to be allocated between Seller assigned to or executed by Purchaser, shall give Purchaser the ability to comment thereon and Buyer (or the Company, as applicable) as follows:
(i) shall consider in good faith any reasonable comments provided by Purchaser. If a Liability or obligation is incurred exclusively in respect of the Rolling Mill Business or the Excluded Businesses, any such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability or obligation Shared Contract cannot be so allocated under clause amended (iand new Contracts cannot be entered into) abovewithin such period, or if either of the foregoing would impair the benefits that either Purchaser or Seller would expect to derive from such amended Shared Contract, then the Parties shall use their respective commercially reasonable efforts to obtain for Purchaser an arrangement to provide Purchaser with the benefits of such Shared Contract in some other manner, including Seller and Purchaser entering into such lawful and commercially reasonable arrangements to place Purchaser in substantially the same economic and liability position as if such amendments and new Contracts were entered into in accordance with the foregoing (including by entering into sub-contracting, sub-licensing or sub-leasing arrangements for the benefit of Purchaser or enforcing for the benefit of Purchaser any and all rights of Seller against any Third Party to a Shared Contract to the extent relating to the Operations); provided, such Liability arrangement does not infringe upon the legal rights of any Third Party, violate any Law or obligation shall be allocated to require Seller or Buyerany of its Affiliates to extend any credit, as including by being liable for any order for which Purchaser has not prepaid such cost to Seller. The obligations of Seller pursuant to this Section 5.05 shall not extend beyond the case may be, based on the relative proportions of total benefit received (over the remaining term of the applicable Shared Contract remaining as of the Closing Date, measured as of the date of the allocation) by the Rolling Mill Business or the Excluded Business under the relevant Shared Contract. Notwithstanding the foregoing, each of Seller and Buyer shall be responsible for any or all Liability or obligation arising from its (or its Subsidiary’s) breach of the relevant Shared Contract to which this Section 5.21 otherwise pertains; provided, however, that each of Seller and Buyer shall be entitled to indemnification from the other for the portion of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.7.
(b) If Seller or any Retained Subsidiaries, on the one hand, or Buyer or any of its Subsidiaries, on the other hand, receives any benefit or payment which under any Shared Contract was intended for the other, Seller 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 Schedule Section 5.21(c)(i) shall not be deemed to be Rolling Mill Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties agree to cooperate and use reasonable best efforts prior to the Closing (with no obligation on the part of either party to pay any costs or fees with respect to such assistance) to effect the separation of such Shared Contracts. If such Shared Contracts are not separated at Closing, the parties agree to continue to provide each other with reasonable cooperation and assistance in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared Contracts.
Appears in 1 contract
Shared Contracts. At or prior to Closing, Ardagh shall assign, transfer and convey to an Ardagh Purchased Entity that portion of any Ardagh Shared Contract that relates to the Ardagh Business, to the extent so related to the Ardagh Business, if so assignable, transferable or conveyable, so that at the Closing (ax) With respect the relevant Ardagh Purchased Entity shall be entitled to Shared Contractual Liabilities pursuant to, under or relating to a given Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, be allocated between Seller the rights and Buyer (or the Company, as applicable) as follows:
(i) If a Liability or obligation is incurred exclusively in respect benefits of that portion of the Rolling Mill Business or the Excluded Businesses, such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Buyer, as the case may be, based on the relative proportions of total benefit received (over the term of the Ardagh Shared Contract remaining as that relates to the Ardagh Business, and shall assume the related portion of the Closing Date, measured as of the date of the allocationany Liabilities under such Ardagh Shared Contract and (y) by the Rolling Mill Business or the Excluded Business under the relevant Shared Contract. Notwithstanding the foregoing, each of Seller and Buyer shall be responsible for any or all Liability or obligation arising from its Ardagh (or its Subsidiary’sapplicable Affiliates) breach shall be entitled to the rights and benefits of that portion of the relevant Ardagh Shared Contract other than those related to which this Section 5.21 otherwise pertainsthe Ardagh Business, and shall assume or retain the related portion of any Liabilities under such Ardagh Shared Contract; provided, however, that each of Seller (i) in no event shall any Person be required to assign, either in its entirety or in part, any Ardagh Shared Contract that is not assignable by its terms without obtaining the required consent, approval or authorization and Buyer shall (ii) if any Ardagh Shared Contract cannot be entitled to indemnification so partially assigned by its terms or otherwise, or cannot be amended, without such consents, approvals or authorizations, then from the Closing through the earlier of (1) such time as such consents, approvals or authorizations are obtained, and (2) the six (6) month anniversary of the Closing Date, Ardagh and NewCo will establish an agency or other similar arrangement reasonably satisfactory to Ardagh and NewCo (with any appropriate “firewalls” or similar procedures required under applicable Law) to both (x) provide NewCo, to the fullest extent practicable under such Ardagh Shared Contract, the claims, rights and benefits of those portions that relate to the Ardagh Business, and (y) cause NewCo to bear the related Liabilities pursuant to such Ardagh Shared Contract from and after the Closing in accordance with this Agreement to the extent that NewCo receives the rights and benefits of the portion of the Ardagh Shared Contracts that relate to the Ardagh Business. Ardagh shall use commercially reasonable efforts to enforce, at the request (and for the benefit) of NewCo, any rights of Ardagh arising from the portion of any Liability or obligation arising from any breach of the relevant Ardagh Shared Contract by the other party (that is not assigned or its Subsidiary), which indemnification shall be separate from and not subject transferred to NewCo to the limitations set forth in Section 9.7.
(b) If Seller or any Retained Subsidiaries, on the one hand, or Buyer or any of its Subsidiaries, on the other hand, receives any benefit or payment which under any Shared Contract was intended for the other, Seller and Buyer will use their respective reasonable best efforts to, and to cause their respective Subsidiaries to, deliver extent such benefit or payment rights are related to the other party.
(c) Notwithstanding anything to the contrary herein, the parties agree that the Shared Contracts listed on Schedule Section 5.21(c)(i) shall not be deemed to be Rolling Mill Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Ardagh Business. The parties agree Following the date hereof, each of Ardagh and NewCo shall use commercially reasonable efforts to cooperate and use reasonable best efforts prior to the Closing (with no obligation on the part of either party to pay obtain any costs consent, approval or fees with respect to such assistance) authorization necessary to effect the separation assignment of such the portion of each Ardagh Shared Contracts. If such Shared Contracts are not separated at Closing, Contract that relates to the parties agree Ardagh Business to continue to provide each other with reasonable cooperation and assistance in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared ContractsNewCo.
Appears in 1 contract
Shared Contracts. (a) Buyer acknowledges that Seller or its Subsidiaries are party to certain Contracts (including sales orders and purchaser orders) that relate both to the Business and one or more of the Excluded Dublin Businesses (each, including those listed on Section 5.8(a) of the Seller Disclosure Schedule and Buyer Shared Contracts, but excluding the DWDP Separation Related Agreements (other than Severable DWDP Separation Related Agreements) and IT Assets, a “Shared Contract”). Prior to the Closing, and until the expiration or termination date of the applicable Shared Contract, each of Seller and Buyer shall, and shall cause their respective Subsidiaries to, use their respective reasonable best efforts to obtain from, and to cooperate in obtaining from, and shall, and shall cause their respective Subsidiaries to, enter into with, each third party to a Shared Contract, either (i) a separate contract or agreement on terms and in a form reasonably acceptable to Seller and Buyer (a “New Contract”) that allocates the rights and obligations of Seller and its Subsidiaries under each such Shared Contract as between the Business, on the one hand, and the Excluded Dublin Businesses, on the other hand, and which are otherwise substantially similar in all material respects to such Shared Contract, or (ii) a contract or agreement on terms and in a form reasonably acceptable to Seller and Buyer effective as of the Closing (the “Partial Assignments and Releases”) that (A) assigns the rights and obligations of Seller or its applicable Affiliates under such Shared Contract solely to the extent related to the Business and arising after the Closing to Buyer and its applicable Subsidiaries and (B) releases Seller and its Subsidiaries, and Buyer and its Affiliates (including the Company, the Transferred Subsidiaries and the Transferred Joint Ventures), as applicable, from all liabilities or obligations with respect to the Business or the Excluded Dublin Businesses, respectively, that arise after the Closing. Any New Contracts that relate to the Business (the “New Business Contracts”) shall be entered into by Buyer or one of its Subsidiaries effective as of the Closing and shall allocate to Buyer or such Subsidiary (as applicable) all rights and obligations of Seller and its Subsidiaries (as applicable) under the applicable Shared Contract being replaced to the extent such rights and obligations relate to the Business and arise after the Closing. All purchase commitments under the Shared Contracts shall be allocated under the New Business Contracts or the Partial Assignments and Releases as between the Business, on the one hand, and the Excluded Dublin Businesses, on the other hand, in an equitable manner that is mutually and reasonably agreed to by Seller and Buyer. In connection with the entering into of New Business Contracts, the Parties shall use their reasonable best efforts to negotiate that Seller and its Subsidiaries, and Buyer and its Affiliates (including the Company and the Transferred Subsidiaries), as applicable, are released by the third party with respect to all liabilities and obligations to the extent related to the Business or the Excluded Dublin Businesses, respectively, and arising after the Closing.
(b) In the event that any third party under a Shared Contract does not agree to enter into a New Business Contract or Partial Assignment and Release consistent with Section 5.8(a) the Parties shall until the expiration or termination date of the applicable Shared Contract, cooperate with each other and, following good faith discussions between the Parties, seek to obtain or structure mutually acceptable alternative arrangements for the applicable member of the Company Group (or Buyer or its Affiliates) and the applicable member of the Seller Group (or its Affiliates) receiving rights and benefits, and bearing liabilities and obligations, to the extent related to its respective business (provided that such arrangements shall not result in a breach or violation of such Shared Contract by Seller or its Subsidiaries). Such alternative arrangements may include a subcontracting, sublicensing, subleasing or other similar arrangement under which Buyer and its applicable Subsidiaries would, in compliance with Law, obtain the benefits under, and, to the extent first arising after the Closing, assume the obligations and bear the economic burdens associated with, such Shared Contract solely to the extent related to the Business (or applicable portion thereof) and under which Seller and its Subsidiaries would, upon the request of Buyer, enforce for the benefit (and at the expense) of Buyer and its Subsidiaries any and all of Seller and its Subsidiaries rights against such third party under such Shared Contract solely to the extent related to the Business (or applicable portion thereof), and Seller and its Subsidiaries would promptly pay to Buyer and its applicable Subsidiaries when received all monies received by them (net of any applicable Taxes imposed on Seller and its Subsidiaries) from time to time under such Shared Contract solely to the extent Related to the Business (or applicable portion thereof).
(c) With respect to Shared Contractual Liabilities Liabilities, rights and benefits pursuant to, under or relating to a given Shared Contract, relating to occurrences from and after the Closing, to the extent a New Contract or a Partial Assignment and Release has been entered into in respect to such Shared Contractual Liabilities Contract, such Liabilities, rights and benefits shall, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreementany other Acquisition Document, be allocated between Seller and Buyer (or the Company, as applicable) as follows:
(i) If a Liability is incurred, or obligation if a right or benefit is incurred obtained, exclusively in respect of the Rolling Mill Business or exclusively in respect of the Excluded Dublin Businesses, such Liability Liability, right or obligation benefit shall be allocated to Buyer or its applicable Subsidiary (in respect of the Rolling Mill Business) or Seller or its applicable Subsidiary (in respect of the Excluded Dublin Businesses);
(ii) If a Liability Liability, right or obligation benefit cannot be so allocated under clause (i) above, such Liability Liability, right or obligation benefit shall be allocated to Seller or Buyer, as the case may be, based on the relative proportions of total benefit received (over the term of the Shared Contract remaining as of the Closing Date, measured as of the date of the allocation) by the Rolling Mill Business or the Excluded Business Dublin Businesses (as applicable) under the relevant Shared Contract. Notwithstanding the foregoing, each of Seller and Buyer shall be responsible for any or all Liability Liabilities to the extent related to, resulting from, or obligation arising from its out of (or its Subsidiary’s) direct or indirect breach of of, or actions under, the relevant Shared Contract to which this Section 5.21 5.8 otherwise pertains; provided, however, that each of Seller and Buyer shall be entitled to indemnification from the other for the portion of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.7.
(bd) If Seller or any Retained of its Subsidiaries, on the one hand, or Buyer or any of its Subsidiaries, on the other hand, receives any benefit or payment which under any Shared Contract was intended for the other, Seller 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 partyParty.
(ce) None of Seller, the Company, any Transferred Subsidiary or their Affiliates shall be required to commence any litigation or offer or pay any money or otherwise grant any accommodation (financial or otherwise) to any third Person to (x) obtain any New Contract or Partial Assignment and Release with respect to any Shared Contract, as the case may be or (y) obtain any Regulatory Approvals necessary to enter into an acceptable alternative arrangement contemplated by Section 5.8(c); provided, however, any Party to which the benefit of a New Contract, Partial Assignment and Release or acceptable alternative arrangement would inure pursuant to this Section 5.8(e) may request that the Party that is allocated such Shared Contract as an Acquired Asset or Excluded Asset commence litigation, which request shall be considered in good faith by such Party; provided, further, that such Party’s good faith determination not to commence litigation shall not in and of itself constitute a breach of this Section 5.8(e).
(f) Notwithstanding anything to the contrary herein, the parties Parties agree that the Shared Contracts listed on Section 5.8(f) of the Seller Disclosure Schedule Section 5.21(c)(i(collectively “Excluded Shared Contracts”) shall not be deemed to be Rolling Mill Acquired Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties agree to cooperate and use reasonable best efforts prior to the Closing (with no obligation on the part of either party to pay any costs or fees with respect to such assistance) to effect the separation of such Shared Contracts. If such Shared Contracts hereunder.
(g) The provisions set forth on Section 5.8(g) of the Seller Disclosure Schedule are not separated at Closing, the parties agree to continue to provide each other with reasonable cooperation and assistance in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared Contractshereby incorporated into this Agreement.
Appears in 1 contract
Shared Contracts. (a) With respect Buyer agrees and acknowledges that Parent and/or its Affiliates are parties to Shared Contractual Liabilities pursuant toContracts for products, under materials or relating services that are used or sold by or provided to a given Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, be allocated between Seller the Business and Buyer (or the Companyother businesses of Parent and/or its Affiliates, as applicable) as follows:
(i) If a Liability or obligation is incurred exclusively in respect of the Rolling Mill Business or the Excluded Businesses, such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Buyer, as the case may be, based on the relative proportions of total benefit received (over the term of the Shared Contract remaining as of the Closing Date, measured as of the date of the allocation) by the Rolling Mill Business or the Excluded Business under the relevant Shared Contract. Notwithstanding the foregoing, each of Seller and Buyer shall be responsible for any or all Liability or obligation arising from its (or its Subsidiary’s) breach of the relevant Shared Contract to which this Section 5.21 otherwise pertains; provided, however, that each of Seller and Buyer shall be entitled to indemnification from the other for the portion of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.7.
(b) If Seller or any Retained Subsidiaries, on 5.20 of the one hand, or Buyer or any of its Subsidiaries, on the other hand, receives any benefit or payment which under any Shared Contract was intended for the other, Seller and Buyer will use their respective reasonable best efforts toParent Disclosure Schedule, and which Contracts will not be assigned by Parent or its applicable Affiliates to cause their respective Subsidiaries to, deliver Buyer (such benefit or payment to the other party.
(c) Notwithstanding anything to the contrary hereinContracts, the parties agree that the Shared Contracts listed on Schedule Section 5.21(c)(i) shall not be deemed to be Rolling Mill Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting Parent shall use its commercially reasonable efforts to take such actions as may be reasonably requested by Buyer, and to otherwise cooperate with Buyer, in connection with Buyer’s efforts to enter into a separate agreement with the foregoingother party or parties to any Shared Contract (each such party, a “Vendor”) with respect to the products, materials or services covered by such Shared Contract as they relate to or are used by the Business. To the extent Buyer is not able to enter into a separate agreement with any Vendor with respect to the products, materials or services covered by a Shared Contract set forth on Section 5.20A of the Parent Disclosure Schedule and which products, materials or services are not included in the Services (as defined in the Transition Services Agreement) (each such Shared Contract, an “Included Shared Contract”), the parties have determined applicable Seller that it is advisable that certain party to such Included Shared ContractsContract shall, which are identified on Schedule Section 5.21(c)(ii)for a period not to exceed twelve (12) months following the Closing Date, be separated into separate Contracts between use commercially reasonable efforts to provide Buyer with the appropriate Third Party rights and either benefits (subject to Buyer’s agreement to bear the Excluded Businesses or related costs, burdens and obligations of such Included Shared Contract associated with obtaining such rights and benefits for the Rolling Mill Business. The parties agree account of Buyer) under such Included Shared Contract to cooperate the same extent the Business enjoyed those rights and use reasonable best efforts benefits prior to the Closing (with no obligation whether under the Transition Services Agreement or otherwise), including obtaining such goods and/or services from the Vendor on behalf of Buyer under each such Included Shared Contract on the part same terms as in effect as of either the Closing; provided, that Buyer shall (a) pay or satisfy all the out-of-pocket costs, expenses, obligations and liabilities incurred by Parent and its Affiliates in connection with the foregoing and (b) comply with all of the terms and conditions of each Included Shared Contract as if such Buyer were a party thereto to pay any costs or fees with respect the extent required for the applicable Seller to procure the goods and/or services on behalf of Buyer under each such assistance) to effect the separation of such Included Shared Contracts. If such Shared Contracts are not separated at Closing, the parties agree to continue to provide each other with reasonable cooperation and assistance in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared ContractsContract.
Appears in 1 contract
Shared Contracts. The Retained Companies, on the one hand, and the Buyers, on the other hand, shall, and shall cause their respective Subsidiaries to, cooperate with each other and shall use their commercially reasonable efforts to cause the Shared Contracts set forth on Schedule 5.16(a) (athe “Buyer Parent Designated Shared Contracts”) and the Shared Contracts set forth on Schedule 5.16(b) (the “Seller Designated Shared Contracts” and, together with the Buyer Parent Designated Shared Contracts, the “Designated Shared Contracts”) to be replaced with separate contracts (the “Replacement Contracts”) that provide that the Buyers or any Group Company in the case of the Buyer Parent Designated Shared Contracts, or any Retained Company designated by Seller Parent, in the case of the Seller Designated Shared Contracts, receives contract rights and obligations under the Replacement Contracts, as applicable, that are substantially similar to those contract rights and obligations under the Designated Shared Contracts in effect prior to the Closing. The Buyers shall be solely responsible for any additional costs or fees arising from and under a Replacement Contract for a Buyer Parent Designated Shared Contract, or in connection with any arrangement with respect thereto described in this Section 5.16, and the Retained Companies shall be solely responsible for any additional costs or fees arising from and under a Replacement Contract for a Seller Designated Shared Contract, or in connection with any arrangement with respect thereto described in this Section 5.16. For the avoidance of doubt, notwithstanding anything to the contrary herein, neither a Retained Company, with respect to a Replacement Contract for a Buyer Parent Designated Shared Contract, or in connection with any arrangement with respect thereto described in this Section 5.16, nor the Buyers, with respect to a Replacement Contract for a Seller Designated Shared Contract, or in connection with any arrangement with respect thereto described in this Section 5.16, shall be responsible for any Liabilities resulting from such Replacement Contracts, including any increases in pricing or other costs arising as a result of the transactions contemplated by this Agreement. The Buyers and the Sellers shall cooperate and provide each other with reasonable assistance in effecting such separation of the Designated Shared Contracts prior to the Closing and for a period of ninety (90) days following the Closing Date. If the Buyers and the Sellers are not able to effect the separation of a Designated Shared Contract prior to the Closing, then after the Closing, until any such Designated Shared Contract is separated, to the extent permissible under Law and under the terms of such Designated Shared Contract, each applicable Group Company and each applicable Retained Company shall (i) assume and perform the Liabilities under such Designated Shared Contract relating to its business or the businesses of their Subsidiaries (and shall promptly reimburse the other Party for any reasonable expenses relating thereto incurred by the other Party or its Subsidiaries), allocated in accordance with this Section 5.16, (ii) hold in trust for the benefit of the other Party, and shall promptly forward to the other Party, any monies or other benefits received pursuant to such Designated Shared Contract 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 Designated Shared Contract was separated as described above; provided that, notwithstanding the foregoing, following the Closing, (x) no Party shall have any obligation to renew any 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 be prohibited from terminating or canceling such Designated Shared Contract as permitted pursuant to the terms thereof. The Buyers shall be solely responsible for replacing any Buyer Parent Designated Shared Contracts, to the extent such Buyer Parent Designated Shared Contracts are not separated as described above prior to the Closing. The Retained Companies shall be solely responsible for replacing any Seller Designated Shared Contracts to the extent such Seller Designated Shared Contracts are not separated as described above prior to the Closing. With respect to Shared Contractual Liabilities pursuant to, under or relating to resulting from a given Designated Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreementa Replacement Contract, be allocated from time to time between Seller the Retained Companies, on the one hand, and Buyer (or the CompanyBuyers and the Group Companies, as applicable) as follows:
(i) If a Liability or obligation is incurred exclusively in respect of on the Rolling Mill Business or the Excluded Businesses, such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Buyerother hand, as the case may be, based on the relative proportions of total benefit benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term of the such Designated Shared Contract remaining as of the Closing DateContract, measured as of up to the date of the allocation, without duplication) by the Rolling Mill Business Retained Companies, on the one hand, or the Excluded Business Buyers and the Group Companies, on the other hand, under the relevant such Designated Shared Contract. Notwithstanding the foregoing, each of Seller and Buyer Party shall be solely responsible for (and shall indemnify each other Party and its Affiliates for) any and all Liabilities to the extent arising out of or all Liability or obligation arising from its relating to such Party’s (or its Subsidiary’sSubsidiaries’) breach of such Designated Share Contract. It is acknowledged that for the relevant Shared Contract to which purposes of this Section 5.21 otherwise pertains; provided5.16, however, that each of Seller and Buyer what constitutes “substantially similar” shall be entitled to indemnification from determined after taking into account changes in volume and similar pricing metrics, as well as the other for the portion of any Liability or obligation arising from any breach needs of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.7applicable Party.
(b) If Seller or any Retained Subsidiaries, on the one hand, or Buyer or any of its Subsidiaries, on the other hand, receives any benefit or payment which under any Shared Contract was intended for the other, Seller 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 Schedule Section 5.21(c)(i) shall not be deemed to be Rolling Mill Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties agree to cooperate and use reasonable best efforts prior to the Closing (with no obligation on the part of either party to pay any costs or fees with respect to such assistance) to effect the separation of such Shared Contracts. If such Shared Contracts are not separated at Closing, the parties agree to continue to provide each other with reasonable cooperation and assistance in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared Contracts.
Appears in 1 contract
Sources: Securities and Asset Purchase Agreement (Modine Manufacturing Co)
Shared Contracts. (a) With To the extent any of the Shared Contracts may be split and assigned in part to Buyer or replicated for the benefit of Buyer pursuant to its terms, without the consent of the counterparty thereto or other conditions, including the payment of a transfer or other fee (the “Assignable Shared Contracts”), each such Assignable Shared Contract shall thereafter be deemed (to the extent of the split or replication with respect to the portion of such Assignable Shared Contractual Liabilities pursuant toContract that relates to the Hospital & Large Physician Practice Business) to be an Assigned Contract hereunder and the applicable Seller Company shall split and partially assign (or cause to be split and partially assigned) to Buyer, under or relating have or cause to be replicated, for the benefit of Buyer as of the Closing Date such Contract in accordance with its terms.
(b) Schedule 7.12(b) sets forth a given list of each Non-Assignable Shared Contract. As used herein, “Non-Assignable Shared Contracts” means each Shared Contract that (x) is not an Assignable Shared Contract and (y) the counterparty to such Shared Contract is a Significant Customer or Significant Vendor. Within twenty (20) days after the date hereof, Buyer shall provide Parent with a list of each Non-Assignable Shared Contract, if any, for which Buyer requests that Parent seek such Shared Contractual Liabilities shall, unless otherwise allocated pursuant counterparty’s permission to this Agreement or an Ancillary Agreement, be allocated between Seller split and Buyer partially assign (or replicate) such Non-Assignable Shared Contract (the Company, as applicable) as follows:
(i) If a Liability “Designated Non-Assignable Shared Contracts”). Each Party shall use commercially reasonable efforts to cause the counterparty to each such Designated Non-Assignable Shared Contract to consent to the split and partial assignment or obligation is incurred exclusively in respect replication of the Rolling Mill Business or the Excluded Businesses, such Liability or obligation shall be allocated Designated Non-Assignable Shared Contract to Buyer (in with respect to the portion of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Buyer, as the case may be, based on the relative proportions of total benefit received (over the term of the Designated Non-Assignable Shared Contract remaining that relates to the Hospital & Large Physician Practice Business), or to otherwise enter into a new Contract with Buyer on substantially the same terms as exist under the applicable Shared Contract as of the Closing Date. Each such Designated Non-Assignable Shared Contract for which the Parties have received consent to the split and partial assignment or replication shall thereafter be deemed (to the extent of the split or replication with respect to the portion of such Designated Non-Assignable Shared Contract that relates to the Hospital & Large Physician Practice Business) to be an Assigned Contract hereunder and the applicable Seller Company shall split and partially assign (or cause to be split and partially assigned) to Buyer, measured or have or cause to be replicated, as of the date of the allocation) by the Rolling Mill Business or the Excluded Business under the relevant Shared ContractClosing Date such Contract in accordance with its terms. Notwithstanding the foregoing, each the Seller Companies and their Affiliates shall not be required to split and partially assign to Buyer or have replicated any of Seller the Non-Assignable Shared Contracts for which consent has not been obtained; provided such portion of the Non-Assignable Shared Contract related to the Hospital & Large Physician Practice Business is treated as a Restricted Item under Section 7.8. To the extent any counterparty under a Non-Assignable Shared Contract requires the payment of a transfer or other fee for the split and partial assignment or replication of such Shared Contract, Parent and Buyer shall be responsible for any or all Liability or obligation arising from its (or its Subsidiary’s) breach of the relevant Shared Contract to which this Section 5.21 otherwise pertains; provided, however, that each of Seller and Buyer shall be entitled to indemnification from the other for the portion pay one half of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.7such fee that is reasonably required.
(b) If Seller or any Retained Subsidiaries, on the one hand, or Buyer or any of its Subsidiaries, on the other hand, receives any benefit or payment which under any Shared Contract was intended for the other, Seller 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 Schedule Section 5.21(c)(i) shall not be deemed to be Rolling Mill Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties agree to cooperate and use reasonable best efforts prior to the Closing (with no obligation on the part of either party to pay any costs or fees with respect to such assistance) to effect the separation of such Shared Contracts. If such Shared Contracts are not separated at Closing, the parties agree to continue to provide each other with reasonable cooperation and assistance in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared Contracts.
Appears in 1 contract
Sources: Purchase Agreement (Allscripts Healthcare Solutions, Inc.)
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 (ai) draft and agree to a final form of each of Schedule 5.05(a) and Schedule 5.05(b) as promptly as reasonably practicable after the date hereof and (ii) cause the Shared Contracts set forth in Schedule 5.05(a) (to the extent such Shared Contracts do not constitute Transferred Assets) (the “Buyer Designated Shared Contracts”) and the Shared Contracts set forth in Schedule 5.05(b) (to 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 Seller that is party to such Designated Shared Contract, (x) replaced with separate contracts (the “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, 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 any additional costs or fees arising from and under 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, and Seller shall be solely responsible for any additional costs or fees arising from and under 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. For the avoidance of doubt, notwithstanding anything to the 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 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 separated pursuant to a Replacement Contract or replicated as a Replacement Service, to the extent permissible under applicable Law and under the terms of such Designated Shared Contract, Buyer and Seller shall (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 any expenses relating thereto incurred by the other Party or its 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 monies or other benefits received pursuant to such Designated Shared Contract 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 Designated Shared Contract was separated or its services replicated as Replacement Services as described above; provided that, notwithstanding the foregoing, for a period of one hundred and eighty (180) days following the Closing, (x) no Party shall fail to renew any 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 extent such Shared Contracts are not separated or services replicated as described above prior to the Closing. 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 Shared Contractual Liabilities pursuant to, under or relating to resulting from a given Designated Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreementa Replacement Contract or Replacement Service, be allocated from time to time between Seller the Retained Companies, on the one hand, and Buyer (or and the CompanyGroup Companies, as applicable) as follows:
(i) If a Liability or obligation is incurred exclusively in respect of on the Rolling Mill Business or the Excluded Businesses, such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Buyerother hand, as the case may be, based on the relative proportions of total benefit benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term of the such Designated Shared Contract remaining as of the Closing DateContract, measured as of up to the date of the allocation, without duplication) by the Rolling Mill Business Retained Companies, on the one hand, or Buyer and the Excluded Business Group Companies, on the other hand, under the relevant such Designated Shared Contract. Notwithstanding the foregoing, each of Seller and Buyer Party shall be solely responsible for any and all Liabilities to the extent arising out of or all Liability or obligation arising from its relating to such Party’s (or its Subsidiary’sSubsidiaries’) breach of such Designated Shared Contract. It is acknowledged that for the relevant Shared Contract to which purposes of this Section 5.21 otherwise pertains; provided5.05, however, that each of Seller and Buyer what constitutes “substantially similar” shall be entitled to indemnification from determined after taking into account changes in volume and similar pricing metrics, as well as the other for the portion of any Liability or obligation arising from any breach needs of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.7applicable Party.
(b) If Seller or any Retained Subsidiaries, on the one hand, or Buyer or any of its Subsidiaries, on the other hand, receives any benefit or payment which under any Shared Contract was intended for the other, Seller 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 Schedule Section 5.21(c)(i) shall not be deemed to be Rolling Mill Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties agree to cooperate and use reasonable best efforts prior to the Closing (with no obligation on the part of either party to pay any costs or fees with respect to such assistance) to effect the separation of such Shared Contracts. If such Shared Contracts are not separated at Closing, the parties agree to continue to provide each other with reasonable cooperation and assistance in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared Contracts.
Appears in 1 contract
Shared Contracts. (a) With respect Following the date hereof, the Parties shall use reasonable efforts to Shared Contractual Liabilities pursuant toenter into or to grant, under or relating and to cause each third party counterparty to a given Shared Contract that is set forth in Section 6.14 of the Disclosure Schedules (each a “Specified Shared Contract”) to enter into or to grant, any new agreements, bifurcations or consents as are reasonably necessary to permit Purchaser to operate the Business on an independent basis following the Closing, derive those claims, rights and benefits, and to assume any obligations and economic burdens, as each such Person derives from such Specified Shared Contractual Liabilities shallContract immediately prior to the Closing (such portion of the claims, unless otherwise allocated pursuant rights benefits, obligations and economic burdens that are related to this Agreement or an Ancillary Agreementthe Business, be allocated between is referred to herein as the “Business Portion” and such portion of the claims, rights, benefits, obligations and economic burdens that are related to Seller and Buyer the other Selling Entities and their respective Subsidiaries and their businesses (other than the Business), is referred to herein as the “Non-Business Portion”). If, on the Closing Date, any such third party agreement, bifurcation or the Company, as applicable) as follows:
(i) If a Liability or obligation is incurred exclusively in respect of the Rolling Mill Business or the Excluded Businesses, such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Buyerconsent, as the case may be, is not obtained with respect to a Specified Share Contract, Seller and Purchaser shall, for a period of twelve (12) months following the Closing, (a) continue to use commercially reasonable efforts to enter into or to grant, and to cause each third party counterparty to such Specified Shared Contract to enter into or to grant, any such new agreements, bifurcations or consents, as applicable, (b) cooperate (at their own expense) reasonably and lawfully following the Closing in a mutually acceptable arrangement under which Purchaser, on the one hand, and Seller and the other Selling Entities, on the other hand, would, where commercially reasonable and in compliance with applicable Law, obtain the appropriate claims, rights and benefits and assume and perform the related obligations and bear the related economic burdens of the Business Portion of such Specified Shared Contract (in the case of Purchaser) and the Non-Business Portion of such Specified Shared Contract (in the case of Seller and the other Selling Entities), including by means of subcontracting, sublicensing or subleasing arrangements, or enforcement by the party to such Specified Shared Contract for the benefit (and at the expense) of Purchaser or any of its Subsidiaries, or Seller or any of the other Selling Entities (as applicable) that is an intended beneficiary thereof pursuant to this Section 6.14 and (c) pay, reimburse and/or otherwise be responsible for the Business Portion of all license fees payable to any licensor by any of the foregoing or their respective Subsidiaries under any such Specified Shared Contract on a pro rata basis (based on the relative proportions of total benefit received (over such license fee attributable to the term Business Portion and Non-Business Portion of the Shared Contract remaining as of the Closing Date, measured as of the date of the allocation) by the Rolling Mill Business or the Excluded Business under the relevant such Specified Shared Contract). Notwithstanding the foregoing, each of Seller and Buyer shall be responsible for any or all Liability or obligation arising from its (or its Subsidiary’s) breach of the relevant Shared Contract to which this Section 5.21 otherwise pertains; provided, however, that each of Seller and Buyer shall be entitled to indemnification from the other for the portion of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.7.55
(b) If Seller or any Retained SubsidiariesNotwithstanding anything else set forth in this Section 6.14, on the one hand, or Buyer or neither Party nor any of its SubsidiariesAffiliates shall (i) be required to take any action pursuant to Section 6.14(a) that would (x) result in a violation of any obligation which such Party or its Affiliates has to any third party, on (y) constitute a breach or violation of any applicable Law (whether by operation of law or otherwise), or (z) adversely affect the rights of Purchaser and its Affiliates thereunder (unless the prior written consent of Purchaser has been obtained), (ii) be obligated to pay (or cause to be paid) (x) fees, costs or expenses in connection with their obligations under Section 6.14(a) (other handthan immaterial administrative or legal costs and expenses) or (y) any consideration to any third party who is requested to enter into or to grant any such new agreements, receives bifurcations or consents, or (iii) be required to take any benefit or payment which under action in connection with any Shared Contract was intended for the other, Seller 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 partythat is not a Specified Shared Contract.
(c) Notwithstanding anything to the contrary herein, the parties agree that the Shared Contracts listed on Schedule Section 5.21(c)(i) shall not be deemed to be Rolling Mill Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties agree to cooperate and use reasonable best efforts prior to the Closing (with no obligation on the part of either party to pay any costs or fees with respect to such assistance) to effect the separation of such Shared Contracts. If such Shared Contracts are not separated at Closing, the parties agree to continue to provide each other with reasonable cooperation and assistance in effecting the separation of such Shared Contracts and shall treat the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared Contracts.
Appears in 1 contract
Shared Contracts. (a) With respect to Shared Contractual Liabilities pursuant to, under or directly relating to a given Shared Contract, such Shared Contractual Liabilities 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 an Ancillary a Related Agreement, be allocated between Seller DuPont and Buyer (or the Company, as applicable) as follows:
(i) If a Liability or obligation is incurred exclusively in respect of the Rolling Mill DPC Business or the Excluded Businesses, such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill DPC Business) or Seller DuPont (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller 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 Rolling Mill DPC Business or the Excluded Business under the relevant Shared Contract. Notwithstanding the foregoing, each of Seller DuPont and Buyer shall be responsible for any or all Liability or obligation Liabilities arising from its (or its Subsidiary’s) breach of the relevant Shared Contract to which this Section 5.21 5.16 otherwise pertains; provided, however, that each of Seller and Buyer shall be entitled to indemnification from the other for the portion of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.7.
(b) If Seller DuPont or any Retained SubsidiariesSubsidiary, 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, Seller 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’s Disclosure Schedule Section 5.21(c)(i) shall not be deemed to be Rolling Mill DPC Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii)5.16(c)(ii) of the Seller’s Disclosure Schedule, be separated into separate Contracts between the appropriate Third Party third party and either the Excluded Businesses or the Rolling Mill DPC Business. The parties agree to cooperate and use provide reasonable best efforts 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) to effect in effecting the separation of such Shared Contracts. If such 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 respect to any or all of the Shared Contracts are not separated at Closing, set forth on Section 5.16(c)(ii) of the parties agree Seller’s Disclosure Schedule to continue to provide each other with reasonable cooperation and assistance in effecting the separation extent that such new or separate Contract (x) is a sourcing Contract containing “take or pay” obligations of such Shared Contracts Transferred DPC Company, Joint Venture or respective Subsidiary thereof or (y) requires payment of any costs by such Transferred DPC Company, Joint Venture or respective Subsidiary thereof to terminate such separate Contract.
(d) As used in this Section 5.16, Buyer’s Subsidiaries shall include the Transferred DPC Companies and shall treat their Subsidiaries and the same as Shared Contracts or take such reasonable steps as are necessary to provide each party the benefit of such Shared ContractsJoint Ventures.
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