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) (collectively, 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 Liabilities pursuant to, under or relating to a given Backstop Designated Shared Contract, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract, be allocated from time to time between Seller and the Retained Subsidiaries, on the one hand, and Buyer and the Purchased Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term of the applicable Backstop Designated Shared Contract, measured up to the date of the allocation, without duplication) by Seller and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased Companies, on the other hand, under the relevant Backstop Designated Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible for any and all Liabilities to the extent arising out of or relating to such Party’s (or its Subsidiaries’) breach of any such Backstop Designated Shared Contract. It is acknowledged that for the purposes of this Section 5.05 changes in volume metrics, as well as changes to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similar.”
Appears in 2 contracts
Sources: Asset and Stock Purchase Agreement (Darden Restaurants Inc), Asset and Stock Purchase Agreement (Darden Restaurants Inc)
Shared Contracts. Seller(a) Subject to Section 6.5(b) below, on for a period of ninety (90) days following the one handClosing Date, Seller Parent shall, and shall cause its Subsidiaries to, reasonably cooperate with Buyer to the extent reasonably requested by Buyer to cause the counterparty to any Shared Contract material to the 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, 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.
(b) With respect to the Shared Contract set forth on Schedule 6.5(b), for a period of one (1) year following the other handClosing Date, Buyer and Seller Parent shall, and shall cause their respective controlled Affiliates Subsidiaries to, reasonably cooperate and shall use their reasonable best efforts with each other to the extent reasonably necessary to cause the Contracts set forth in Schedule 5.05(a) counterparty to such Shared Contract to enter into a new agreement with Buyer (collectivelyor, at Buyer’s option, 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 Transferred Group, 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 (iappropriate) with respect to the Backstop Designated provisions of such 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 ContractsContract enters into a new agreement with Buyer (or, except at Buyer’s option, the Transferred Group, as appropriate) with respect to the extent any provisions of 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 contract that are related to the other PartyVabomere, any monies or other benefits received pursuant remaining obligation to such Backstop Designated Shared Contract relating to make 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 Milestone Payment in respect of such Designated Shared Contract, unless Buyer confirms to Seller Milestone #6 (as defined in writing that Buyer does not need to receive the benefit of such Designated Shared Contract, and (yRempex Merger Agreement as defined in Schedule 1.1(d)) 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 Liabilities pursuant to, under or relating to a given Backstop Designated Shared Contract, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract, be allocated from time to time between Seller and the Retained Subsidiaries, on the one hand, and Buyer and the Purchased Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term of the applicable Backstop Designated Shared Contract, measured up to after the date of the allocationsuch agreement, without duplication) by Seller and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased Companies, on the other hand, under the relevant Backstop Designated Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible for any and all Liabilities to the extent arising out of or relating to such Party’s (or its Subsidiaries’) breach of any such Backstop Designated Shared Contract. It is acknowledged that for the purposes of this Section 5.05 changes in volume metrics, as well as changes to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similardeemed 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(a) (collectively, 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 Contractual Liabilities pursuant to, under or directly relating to a given Backstop Designated Shared Contract, such 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 a Replacement ContractRelated Agreement, be allocated from time to time between Seller and the Retained Subsidiaries, on the one hand, DuPont and Buyer and as follows:
(i) If a Liability is incurred exclusively in respect of the Purchased CompaniesDPC Business or the Excluded Businesses, on such Liability shall be allocated to Buyer (in respect of the other handDPC Business) or DuPont (in respect of the Excluded Businesses);
(ii) If a Liability cannot be so allocated under clause (i) above, such Liability shall be allocated to DuPont or Buyer, as the case may be, based on the relative proportions of total benefits economic benefit 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 ContractContract remaining as of the Closing Date, measured up to as of the date of the allocation, without duplication) by Seller the DPC Business or the Excluded Business under the relevant Shared Contract. Notwithstanding the foregoing, each of DuPont and Buyer shall be responsible for any or all Liabilities arising from its (or its Subsidiary's) breach of the relevant Shared Contract to which this Section 5.16 otherwise pertains.
(b) If DuPont or any Retained SubsidiariesSubsidiary, on the one hand, or Buyer or any of its Subsidiaries (including the Transferred DPC Companies and the Purchased Companiestheir Subsidiaries), on the other hand, receives any benefit or payment which under any Shared Contract was intended for the relevant Backstop Designated other, DuPont and Buyer will use their respective reasonable best efforts to, and to cause their respective Subsidiaries to, deliver such benefit or payment to the other party.
(c) Notwithstanding anything to the contrary herein, the parties agree that the Shared ContractContracts listed on Section 5.16(c)(i) of the Seller's Disclosure Schedule shall not be deemed to be DPC Assets hereunder (the "Excluded Shared Contracts"). Notwithstanding Without limiting the foregoing, each Party the parties have determined that it is advisable that certain Shared Contracts, which are identified on Section 5.16(c)(ii) of the Seller's Disclosure Schedule, be separated into separate Contracts between the appropriate third party and either the Excluded Businesses or the DPC Business. The parties agree to cooperate and provide reasonable assistance prior to the Closing (with no obligation on the part of either party to pay any costs or fees with respect to such assistance) in effecting the separation of such Shared Contracts. Notwithstanding anything to the contrary herein, without the prior written consent of Buyer, no Transferred DPC Company, any Subsidiary of the Transferred DPC Companies or any Joint Venture or any of its Subsidiaries shall be solely responsible for enter into any and new Shared Contract after the date hereof or any separate Contract with respect to any or all Liabilities of the Shared Contracts set forth on Section 5.16(c)(ii) of the Seller's Disclosure Schedule to the extent arising out that such new or separate Contract (x) is a sourcing Contract containing "take or pay" obligations of such Transferred DPC Company, Joint Venture or relating to such Party’s respective Subsidiary thereof or (or its Subsidiaries’y) breach requires payment of any costs by such Backstop Designated Shared Transferred DPC Company, Joint Venture or respective Subsidiary thereof to terminate such separate Contract. It is acknowledged that for the purposes of .
(d) As used in this Section 5.05 changes in volume metrics5.16, as well as changes to reflect Buyer's Subsidiaries shall include the needs of Transferred DPC Companies and their Subsidiaries and the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similarJoint Ventures.”
Appears in 1 contract
Shared Contracts. Seller, on the one hand, and Buyer, on the other hand, shall, and shall cause their respective controlled Affiliates Subsidiaries to, cooperate with each other and shall use their commercially reasonable best efforts to (i) 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) (collectivelyto 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 contract rights and obligations 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 Purchased Retained Company with designated by Seller, in the case of the Seller Designated Shared Contracts, receives contract rights and obligations (including as to pricing metrics) under the Designated Shared Replacement Contracts or Replacement Services, as applicable, that are substantially similar similar, to those contract rights and obligations (including as to pricing metrics) 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 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 solely 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) additional costs or fees required to be paid arising from and under a Replacement Contract or Backstop Replacement Service for a Buyer Designated Shared Contract Contract, or in connection with any alternative arrangements entered into pursuant to 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. 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 BuyerClosing Date. If Buyer and Seller are not able to effect the separation or replication of a Designated Shared Contract (each a “Backstop Designated Shared Contract”)prior to the Closing, such Backstop Designated Shared Contract shall be automatically deemed set forth on Schedule 5.05(b) on then after the Closing Date andClosing, until any such Backstop Designated Shared Contract is separated pursuant to a Replacement Contract or otherwise replaced, but in no event longer than one hundred eighty (180) daysreplicated as a Replacement Service, to the extent permissible under applicable Law and under the terms of such Backstop Designated Shared Contract, Buyer and Seller shall (and shall cause their respective Subsidiaries (including, in the case of Buyer, the Group Companies) to) (i) Seller shall continue to assume and perform the obligations Liabilities under such Backstop Designated Shared Contract at relating to its business or the sole cost businesses of its Subsidiaries (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, promptly reimburse Seller the other Party for any out-of-pocket costs and expenses relating thereto incurred by the other Party 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)its Subsidiaries), 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 allocated in accordance with 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 SellerSection 5.05, (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 business of the other Party (or the business of its respective AffiliatesSubsidiaries) 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 was separated into or its services replicated as Replacement Contracts in accordance with this Section 5.05Services as described above; provided that, notwithstanding the foregoing provisions of this paragraphforegoing, for a period of one hundred and eighty (180) days following the Closing, (x) Seller and its Affiliates no Party shall fail to renew each any 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 Affiliateseither party thereto, Seller and its Affiliates the applicable Party shall not terminate or cancel such Designated Shared Contract if as permitted pursuant to the terms thereof, in each case, without the prior written consent of Buyer has not entered into a Replacement Contract in respect of such or Seller, as applicable. Buyer shall be solely responsible for replacing any Buyer Designated Shared ContractContracts, 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 as well as any Backstop Designated other Shared Contracts that are not Transferred Assets or that are Retained Assets, to the extent such Backstop Designated Shared Contracts are not separated or transitioned hereunder and, for services replicated as described above prior to the avoidance of doubt, Closing. Seller shall be under no obligation hereunder to (x) deliver to Buyer the same pricing metrics in solely responsible for replacing any Seller 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 ContractContracts, as well as any other Shared Contracts that are Transferred Assets or that are not Retained Assets, to the case may beextent such Shared Contracts are not separated or services replicated as described above prior to the Closing. With respect to Liabilities pursuant to, under or relating to resulting from a given Backstop Designated Shared Contract, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement ContractContract or Replacement Service, be allocated from time to time between Seller and the Retained SubsidiariesCompanies, on the one hand, and Buyer and the Purchased Group Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term of the applicable Backstop such Designated Shared Contract, measured up to the date of the allocation, without duplication) by Seller and the Retained SubsidiariesCompanies, on the one hand, or Buyer and the Purchased Group Companies, on the other hand, under the relevant Backstop such Designated Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible for any and all Liabilities to the extent arising out of or relating to such Party’s (or its Subsidiaries’) breach of any such Backstop Designated Shared Contract. It is acknowledged that for the purposes of this Section 5.05 5.05, what constitutes “substantially similar” shall be determined after taking into account changes in volume and similar pricing metrics, as well as changes to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similar.”
Appears in 1 contract
Shared Contracts. Seller, on (a) Except for Shared Contracts specifically addressed by 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) (collectively, 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) services provided 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 additionTransition Services Agreement, Seller shall, and shall cause its controlled Affiliates Subsidiaries to, use their commercially reasonable efforts to, as reasonably requested by Buyer, (i) cause the counterparty to any Shared Contract to enter into a new contract with the Group Companies, on terms substantially similar to those applicable to the Business in such Shared Contract including with respect to pricing, in order for the Business to receive the applicable benefits under such Shared Contract (each such new contract, a “New Contract”) or (ii) split the respective rights and obligations under any Shared Contract such that, effective at or prior to the Closing (A) the Group Companies shall be the assigned beneficiary of the rights under such Shared Contract (each such contract, an “Assumed Shared Contract”) to the extent such rights relate to the Business, and shall be responsible for the Liabilities and obligations under such Assumed Shared Contract to the extent such Liabilities and obligations relate to the Business and (B) the relevant Retained Company shall remain the beneficiary of the remaining rights under such Assumed Shared Contract and shall remain responsible for the remaining Liabilities and obligations under such Assumed Shared Contract.
(b) If the Parties are not able, with respect to any such Shared Contract, to obtain a New Contract or to so assign such Shared Contract prior to the Closing, except for Shared Contracts specifically addressed by the services provided under the Transition Services Agreement, then (x) for a period of one hundred eighty days twelve (18012) 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 months following the term sheet regarding such arrangement provided to Buyer prior to the date hereofClosing, or such other terms as are reasonably requested by Buyer. If Seller, 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 their respective Affiliates 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 cause such counterparty to put enter into a New Contract or assign to the Parties in a substantially similar economic position as if Group Companies the benefits and obligations under such Backstop Designated Shared Contract were separated into Replacement Contracts in accordance with this Section 5.05; provided that, notwithstanding as they relate to 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 ContractBusiness, and (y) to until the extent any earlier of either (A) twenty-four (24) months after the Closing or (B) such Designated time as a New Contract is executed or a Shared Contract contains an “evergreen” provision that automatically renews such Designated Shared Contract unless terminated or cancelled by Seller or its Affiliatesis so assigned, Seller and its Buyer shall use and shall cause their respective 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 use commercially reasonable efforts 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 secure an alternative arrangement reasonably satisfactory to the parties under which the Business would, in compliance with respect to a Backstop Designated applicable Law, obtain the benefits and bear the burdens associated with the applicable Shared Contract or (y) after such that the Closing Date to separate or transition, or provide Buyer with any rights or benefits under, any Shared Business would be placed in a substantially similar position as if a New Contract that is not a Designated Shared Contract or a Backstop Designated Shared Contract, as the case may be. With respect to Liabilities pursuant to, under or relating to a given Backstop Designated Shared Contract, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract, be allocated from time to time between Seller and the Retained Subsidiaries, on the one hand, and Buyer and the Purchased Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term of the applicable Backstop Designated Shared Contract, measured up to the date of the allocation, without duplication) by Seller and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased Companies, on the other hand, under the relevant Backstop Designated Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible for any and all Liabilities to the extent arising out of or relating to such Party’s (or its Subsidiaries’) breach of any such Backstop Designated Shared Contract. It is acknowledged that for the purposes of this Section 5.05 changes in volume metrics, as well as changes to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similarwere executed.”
Appears in 1 contract
Shared Contracts. SellerThe parties hereto acknowledge that Seller and its Affiliates (other than the Transferred Entities) are parties to certain contracts and agreements set forth on Section 7.10(a) of the Seller Disclosure Schedules that relate to the operations or conduct of the business of one or more of the Transferred Entities, but which will remain with Seller and its Affiliates (other than the Transferred Entities) after the Closing. In the case of those contracts set forth on Section 7.10(b) of the one handSeller Disclosure Schedule (collectively, the “Shared Contracts”), the parties shall cooperate with each other and Buyeruse 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 to enter into a new contract effective as of the Closing 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 other handShared Contract as of the 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 Closing Date to cause the counterparty to such Shared Contract to enter into a Replacement Contract, provided that during such six-month period, Seller and its Affiliates shall provide Buyer and the Transferred Entities with the benefits of such Shared Contracts pursuant to the Transition Services Agreement at no additional cost to Buyer or the Transferred Entities. If a Replacement Contract has not been obtained after the six month period, then, Seller and Buyer 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) (collectively, 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 secure an arrangement reasonably satisfactory to put both parties under which the Parties Transferred Entities would, in a substantially similar economic position as if such Backstop Designated compliance with Applicable Law, obtain the benefits associated with the applicable Shared Contract were separated into Replacement Contracts in accordance with this Section 5.05; provided thatContracts, notwithstanding the foregoing provisions of this paragraph, for a period of one hundred eighty (180) days following the Closing, (x) which arrangement may include Seller and its Affiliates shall renew each Designated Shared Contract upon providing the expiration or termination thereof if Buyer has not entered into Transferred Entities with such benefits for a Replacement Contract in respect of such Designated Shared Contract, unless Buyer confirms transitional period reasonably acceptable to Seller in writing that Buyer does not need to receive the benefit of such Designated Shared Contract, and (y) both parties pursuant 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 ContractTransition Services Agreement. 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 (i) in no event 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 impose any obligations or providing an alternative arrangement with respect to a Backstop Designated Shared Contract liability on Seller or (y) its Affiliates after the Closing Date and (ii) in no event shall the execution of any Replacement Contract constitute a condition to separate or transition, or provide the obligation of Buyer with any rights or benefits under, any Shared Contract that is not a Designated Shared Contract or a Backstop Designated Shared Contract, as to consummate the case may be. With respect to Liabilities pursuant to, under or relating to a given Backstop Designated Shared Contract, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract, be allocated from time to time between Seller and the Retained Subsidiaries, Closing on the one hand, terms and Buyer and the Purchased Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term of the applicable Backstop Designated Shared Contract, measured up to the date of the allocation, without duplication) by Seller and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased Companies, on the other hand, under the relevant Backstop Designated Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible for any and all Liabilities to the extent arising out of or relating to such Party’s (or its Subsidiaries’) breach of any such Backstop Designated Shared Contract. It is acknowledged that for the purposes of conditions set forth in this Section 5.05 changes in volume metrics, as well as changes to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similarAgreement.”
Appears in 1 contract
Sources: Stock Purchase Agreement (MSCI Inc.)
Shared Contracts. SellerExcept 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 one handDisclosure Letter (a “Specified Shared Contract”) (without giving effect to any extension thereof), and Buyer, on the other hand, shall, Parties shall (and shall cause their respective controlled Affiliates to) use commercially reasonable efforts to obtain or structure an arrangement for Purchaser and its Affiliates to, cooperate from and shall use their reasonable best efforts to cause after the Contracts set forth in Schedule 5.05(a) (collectivelyClosing, obtain the “Designated Shared Contracts”) to be replaced with separate contract claims, rights and obligations (benefits, and assume the “Replacement Contracts”) that provide Buyer or any Purchased Company with contract rights corresponding Liabilities and obligations thereunder (including as other than to pricing metrics) under the Designated extent related to or arising out of a breach or other violation of such 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 Contract at or prior to the Closing. Buyer ), of such portion of any such Shared Contract that is related to the Business with terms and Seller shall each bear one-half (1/2) conditions materially similar to those terms and conditions applicable as of the costs date hereof or, if entered into after the date hereof, as of immediately prior to the Closing, as reasonably determined by Seller and expenses associated with first obtaining and/or entering into any Replacement Contract (e.g., transfer fees, deposits, etc.)Purchaser; provided, however, (A) 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 none 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 Purchaser 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 be under any obligation to enter 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 transitionto, or provide Buyer with obtain any claims, rights and benefits, or benefits assume any corresponding Liabilities and obligations under, any Shared Contract that is not a Designated Shared Contract or a Backstop Designated Specified Shared Contract, as the case may be. With respect 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 Backstop Designated any Specified Shared Contract, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract, shall be allocated from time to time between Seller and Purchaser as follows: (1) if a liability is incurred solely in respect of either the Retained Subsidiaries, on the one hand, and Buyer and the Purchased Companies, on Business or the other handbusinesses of Seller or any of its Affiliates, as such liability shall be allocated to Purchaser (in respect of the case may beBusiness) or Seller (in respect of the other businesses of Seller or any of its Affiliates); and (2) if a liability cannot be so allocated under clause (1), such liability shall be allocated to Purchaser and Seller based on the relative proportions proportion of total benefits benefit under such Specified Shared Contract received by Purchaser or its Subsidiaries in respect of the Business and Seller or any of its Affiliates (other than the Acquired Companies) in respect of its other businesses, as reasonably determined in good faith by Purchaser and Seller. Notwithstanding the foregoing or anything to the extent the contrary in this Agreement, (i) Seller or Purchaser, as applicable, shall be responsible for any or all Liabilities relate to a specific period, over such period, and otherwise over the term arising from its (or its Affiliates’) direct or indirect breach of the applicable Backstop Designated any Specified Shared Contract, measured up to the date of the allocation, without duplication(ii) by Seller and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased Companies, on the other hand, under the relevant Backstop Designated Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible for any and all Liabilities to the extent arising out of from or relating to such Party’s (any of pre-Closing direct or its Subsidiaries’) indirect breach of any such Backstop Designated Specified Shared Contract. It 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 acknowledged that adverse to the other Person, any of its Affiliates or the Business in any material respect or terminate any Specified Shared Contract (excluding, for the purposes avoidance of this Section 5.05 changes in volume metricsdoubt, as well as changes any expiration or automatic extension or renewal of any such Specified Shared Contract pursuant to reflect the needs its terms), or (B) waive any material benefit or right under any Specified Shared Contract of the applicable Partyother Person, shall not be considered when determining whether contract rights and obligations are “substantially similarany of its Affiliates, or the Business.”
Appears in 1 contract
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(a) (collectively, 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 Section 2.10 lists all Contracts that are substantially similar to those contract rights the Stations and obligations (including as to pricing metrics) utilized any other television stations owned 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 hereofis party to, or such other terms as are reasonably requested by Buyer. If Buyer and Seller are not able has rights or obligations with respect to, or will be a party to, or have rights or obligations with respect to effect the separation of a Designated Shared Contract in accordance with Section 5.01 (each a “Backstop Designated Shared Contract”). Each Shared Contract to be assigned to and assumed by Buyer (and included in the Purchased Assets and Assumed Liabilities, as the case may be) is marked with an asterisk on Disclosure Schedule Section 2.10 (hereafter an “Assumed Shared Contract”). At Closing Buyer shall assume only the rights and obligations under such Backstop Designated Assumed Shared Contract that are applicable to the Stations. The rights of each other such television station owned by Seller or its 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 such Shared Contract shall not 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, assigned 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 assumed by 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 constitute Excluded Contracts.
(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, (iib) Buyer and Seller shall hold in trust for shall, as soon as practicable after the benefit date of the other Party, this Agreement make appropriate requests 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 obtain as expeditiously as possible reasonably comparable replacement or separated contracts (each, a “Replacement Contract”) that provide to put Buyer those rights relating to the Parties in a substantially similar economic position as if such Backstop Designated Stations which arise under an Assumed Shared Contract were separated into Replacement Contracts in accordance with this unless otherwise specified on Disclosure Schedule Section 5.05; provided that2.10, notwithstanding subject to the foregoing provisions terms and conditions of this paragraph, for a period of one hundred eighty (180) days following the Closing, (x) Seller and its Affiliates shall renew each Designated such an Assumed Shared Contract upon (the expiration “Shared Contract Rights”), and that allocate to Buyer after Closing solely those obligations relating to the Stations 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) Buyer shall not be required to accept or termination thereof if Buyer has not entered into agree to any Replacement Contract which contains any different terms than the Assumed Shared Contract that would make, or would be reasonably likely to make, the Replacement Contract materially more onerous in the aggregate or that 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 not obtained by the Closing and the Closing occurs, such Assumed Shared Contract shall be held, as of and from the Closing Date, 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 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 all Assumed 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 Liabilities pursuant to, under or relating to a given Backstop Designated Shared Contract, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract, be allocated from time to time between Seller and the Retained Subsidiaries, on the one hand, and Buyer and the Purchased Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term of the applicable Backstop Designated Shared Contract, measured up relating to the date of the allocation, without duplication) by Seller and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased Companies, on the other hand, under the relevant Backstop Designated Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible for any and all Liabilities to the extent arising out of or relating to such Party’s (or its Subsidiaries’) breach of any such Backstop Designated Shared Contract. It is acknowledged that for the purposes of this Section 5.05 changes in volume metrics, as well as changes to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similarStations).”
Appears in 1 contract
Sources: Asset Purchase Agreement
Shared Contracts. Seller, on the one hand(a) Each of Buyer and Seller acknowledges that Seller or its Affiliates are party to, and Buyerone or more of the Company Entities is party to or bound by or have the benefits of the Shared Contracts. Prior to the Closing, on the other hand, Seller shall, and shall cause their respective controlled its Affiliates to, cooperate and shall use their reasonable best efforts to, with respect to cause the Shared Contracts set forth in Section 5.11(a) of the Seller Disclosure Schedule 5.05(a) (collectivelythe “Shared Contract Schedule” and the Shared Contracts set forth on such schedule, the “Designated Material Shared Contracts”), (i) to be replaced with separate contract (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 “Replacement Contracts”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 Buyer or any Purchased the Company with contract Entities the rights and obligations (including as to pricing metrics) under the Designated Shared Contracts that are substantially similar equivalent in the aggregate to those contract rights and obligations (including as to pricing metrics) utilized currently received by Seller 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 each bear one-half (1/2be deemed to be amended and restated to set forth such Shared Contracts in Section 5.11(a)(i) of the costs and expenses associated with first obtaining and/or entering into any Replacement Contract Seller Disclosure Schedules.
(e.g., transfer fees, deposits, etc.); provided, however, that neither Buyer nor c) (i) If 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 costsapplicable Affiliates, despite the use of their respective reasonable best efforts, are unable to implement the results contemplated by Section 5.11(a) 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 Closing, then following the Closing. In additionClosing 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 controlled applicable Affiliates to, for a period of one hundred eighty days (180) use their respective reasonable best efforts to cause any Contract with Coca-Cola Foodservice either (x) assign 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 partially assign 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 Closing5.11(a)(i), (xy) Seller and its Affiliates shall renew each Designated Shared Contract upon the expiration or termination thereof if Buyer has not entered enter into a Replacement Contract in respect of such Designated 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, unless 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 confirms 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 in writing that Buyer does not need to receive 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 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 Designated 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, and Buyer and the Company Entities on the other hand shall reasonably cooperate, 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 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 Designated 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 contains an “evergreen” provision that automatically renews such Designated Shared Contract unless terminated or cancelled by Seller or its Affiliatesprimarily relate to the Business to a Company Entity.
(g) Notwithstanding anything in this Agreement that may be deemed to the contrary, Seller and its (i) neither Seller, Buyer nor any of their respective Affiliates shall not terminate be required to expend money, incur any liability, commence any litigation or cancel offer or grant any accommodation (financial, contractual or otherwise) to any third party to obtain any such Designated Shared Contract if Buyer has not entered into consent to separate, replace, assign or partially assign a Replacement Contract in respect of such Designated Shared Contract, unless Buyer confirms to Seller in writing that Buyer does (ii) the separation, replacement, assignment, or partial assignment of any Shared Contract shall not need to receive the benefit of such Designated Shared Contract. For be a period of one hundred eighty (180) days following the Closing, Buyer and Seller shall reasonably cooperate to replace any Backstop Designated Shared Contracts condition to the extent such Backstop Designated Shared Contracts are not separated obligation of the parties hereto to consummate this Agreement, or transitioned hereunder andthe other Transaction Agreements, for or the avoidance of doubtTransactions, Seller shall be under no obligation hereunder and (iii) failure to (x) deliver to Buyer the same pricing metrics in separate, replace, assign or partially assign any Designated Shared Contract shall not, in connection with obtaining any Replacement Contract in respect thereof or providing an alternative arrangement and of itself, give rise to a breach of this Agreement and shall not be taken into account with respect to a Backstop Designated Shared Contract or (y) after the any condition to Closing Date to separate or transitionset forth in Article 8, 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 right to Liabilities pursuant to, under or relating to a given Backstop Designated Shared Contract, such Liabilities shall, unless otherwise allocated terminate this Agreement pursuant to this Agreement or a Replacement Contract, be allocated from time to time between Seller and the Retained Subsidiaries, on the one hand, and Buyer and the Purchased Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term of the applicable Backstop Designated Shared Contract, measured up to the date of the allocation, without duplication) by Seller and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased Companies, on the other hand, under the relevant Backstop Designated Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible for any and all Liabilities to the extent arising out of or relating to such Party’s (or its Subsidiaries’) breach of any such Backstop Designated Shared Contract. It is acknowledged that for the purposes of this Section 5.05 changes in volume metrics, as well as changes to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similarArticle 9.”
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Dollar Tree, Inc.)
Shared Contracts. SellerPrior to the Closing, the Company and the Buyer shall cooperate in good faith to determine a mutually acceptable plan for separating the Shared Contracts, including (a) to identify any additional Shared Contracts that shall be separated prior to Closing and (b) to seek to equitably apportion any increased costs to the Business, on the one hand, and Buyerthe Company and its Affiliates (other than the Acquired Subsidiaries), on the other hand, shall, and shall cause their respective controlled Affiliates to, cooperate and shall use their reasonable best efforts to cause resulting from separating the Contracts Shared Contracts. Except as set forth in Schedule 5.05(a) (collectivelythis Section 5.22 or otherwise agreed in writing between the Company and the Buyer and subject to the Transition Services Agreement and Day 1 Preparation Plan, 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.parties hereto shall, 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 twelve (18012) days following months thereafter use their commercially reasonable efforts to procure that the above-mentioned Shared Contracts shall be assigned, transferred and conveyed to the Buyer, in each case, only with respect to those parts of such Shared Contracts that primarily relate to the Business, if so assignable, transferable or conveyable, or appropriately amended prior to the Closing. In addition, Seller shallso that the Buyer shall be entitled to the rights and benefit of those parts of the Shared Contracts and shall assume the portion of any liabilities, in each case, to the extent relating to the Business under such Shared Contract; provided, that (i) in no event shall any Person be required to assign (or amend), either in its entirety or in part, any Shared Contract if an attempted assignment or amendment, without the consent of, or other action by, any third party, would constitute a breach thereunder or in any way adversely affect the rights of the Buyer, the Company or any of their respective Affiliates thereunder, and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended, without such consent or action, the Company and the Buyer shall cause its controlled Affiliates to, cooperate in a mutually agreeable arrangement under which for a period of one hundred eighty days up to twelve (18012) 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 months following the Closing, the Buyer or any Purchased Company with contract rights would obtain the benefits 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 assume 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 parts in accordance with this Section 5.05; provided thatAgreement. Any costs, notwithstanding fees and expenses incurred by 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 Liabilities pursuant to, under or relating to a given Backstop Designated Shared Contract, such Liabilities shall, unless otherwise allocated parties hereto pursuant to this Agreement or a Replacement Contract, Section 5.22 shall be allocated from time to time between Seller borne by the Company and the Retained SubsidiariesBuyer on an equal basis; provided, on that the one handportion of such costs, fees and expenses borne by the Buyer shall not exceed $250,000. The Parties acknowledge and agree that the Purchased Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received (to the extent the Liabilities relate to a specific period, over such period, separation and otherwise over the term of the applicable Backstop Designated Shared Contract, measured up to the date of the allocation, without duplication) by Seller and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased Companies, on the other hand, under the relevant Backstop Designated Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible for any and all Liabilities to the extent arising out of or relating to such Party’s (or its Subsidiaries’) breach assignment of any such Backstop Designated Shared Contract. It is acknowledged that for the purposes of Contracts pursuant to this Section 5.05 changes in volume metrics, as well as changes to reflect the needs of the applicable Party, Section 5.22 shall not be considered when determining whether contract rights and obligations are “substantially similarconstitute a condition to Closing.”
Appears in 1 contract
Shared Contracts. Seller(i) At or prior to the Closing Date (unless waived or modified by the FTC with respect to any Shared Contract), on (A) each of the one hand, Seller and Buyer, on the other hand, Purchaser shall, and shall cause their respective controlled Affiliates to, cooperate and shall use their reasonable best efforts to cause the Shared Contracts set forth in Schedule 5.05(a) (collectively, the “Designated Shared Contracts”) to be replaced with separate contract rights and obligations Contracts or Leases, as applicable (the “Replacement Contracts”) ), that provide Buyer that the Purchaser or any Purchased Company with its Affiliates receive contract rights and obligations (including as to pricing metrics) under the Designated Shared such Replacement Contracts that are substantially similar equivalent in the aggregate to those contract rights and obligations (including as to pricing metrics) utilized by the Seller or its Affiliates under the Shared Contracts in the conduct of the Transferred Business prior to the Closing. Buyer and Seller ; provided that the Purchaser shall each bear one-half (1/2) execute an assignment for any portion of a Shared Contract or establish, in the costs and expenses associated with first obtaining and/or entering into any Replacement Contract (e.g.Purchaser’s name, 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 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 alternative arrangements entered Shared 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 pursuant to a Replacement Contract in the Purchaser’s name for any such Shared Contract, then, notwithstanding anything in this Section 5.05. Buyer 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 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 BuyerContracts. If Buyer the Purchaser and the Seller are not able to effect the separation of a Designated Shared Contract in accordance with Section 1.03(b)(i)(A) or (each a “Backstop Designated Shared Contract”), such Backstop Designated Shared Contract shall be automatically deemed set forth on Schedule 5.05(bB) on prior to the Closing Date andand the FTC waives or modifies the requirement to do so, then, until any such Backstop Designated Shared Contract is separated or otherwise replaced, but in no event longer than one hundred eighty (180) daysseparated, to the extent permissible under applicable Law and under the terms of such Backstop Designated Shared Contract, (i) each of the Purchaser and the Seller shall continue to (A) assume and perform the liabilities and obligations under such Backstop Designated Shared Contract at relating to its respective business or that of its Affiliates (and shall promptly reimburse 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 other party for any reasonable out-of-pocket costs expenses incurred by the other party or its Affiliates for liabilities 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 not relating to the interim arrangements contemplated by business of such other party or its Affiliates), allocated in accordance with this clause Section 1.03(b); (iB) 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 Partyparty, and shall promptly forward to the other Partyparty, any monies or other benefits received pursuant to such Backstop Designated Shared Contract relating to the respective businesses of the other Party party (or its respective Affiliates) ); and (iiiC) Buyer and Seller shall use commercially reasonable efforts to institute alternative arrangements intended to put the Parties parties in a substantially similar the same 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 separated.
(180iii) days following the Closing, (x) Seller All liabilities 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 Liabilities pursuant to, under or obligations relating to a given Backstop Designated Shared Contract, such Liabilities Contract shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract, be allocated from time deemed to time between Seller and the Retained Subsidiaries, on the one hand, and Buyer and the Purchased Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received be (A) Assumed Liabilities to the extent the Liabilities such liabilities and obligations relate to a specific period, over such period, the Transferred Business and otherwise over relate to and are required to be performed during periods from and after the term Closing and (B) Retained Liabilities to the extent they do not relate to the Transferred Business or they relate to the ownership or operation of the applicable Backstop Designated Shared Contract, measured up Transferred Business prior to the date of the allocation, without duplication) by Seller and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased Companies, on the other hand, under the relevant Backstop Designated Shared ContractClosing. Notwithstanding the foregoing, each Party party shall be solely responsible for any and all Liabilities liabilities and obligations to the extent arising out of or relating to such Partyparty’s (or its SubsidiariesAffiliates’) breach of any such Backstop Designated Shared Contract. It is acknowledged ; provided that for the purposes of this Section 5.05 changes in volume metrics, as well as changes Purchaser’s failure to reflect the needs of the applicable Party, comply with or satisfy any Assumed Liabilities shall not be considered when determining whether contract rights and obligations are “substantially similardeemed a breach of any Shared Contract by the Seller or any of its Affiliates.”
Appears in 1 contract
Shared Contracts. Seller(a) Each Shared Contract that, on pursuant to its terms, permits the one handassignment to Purchaser of only those rights of Seller or its Subsidiary under such Shared Contract related to the OrthoRecon Products or the Business without the consent of the counterparty thereto or other conditions, and Buyer, on including conditions requiring the payment of any transfer or 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) fee (collectively, the “Designated Assignable Shared Contracts”) ), shall be deemed 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 an Assumed Contract hereunder and Seller shall each bear one-half (1/2) cause to be assigned to Purchaser, as of the costs and expenses associated with first obtaining and/or entering into any Replacement Contract (e.g.Closing, transfer fees, deposits, etc.); provided, however, that neither Buyer nor Seller shall be required to incur any further Liabilities Seller’s 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 respective rights 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 Assignable 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 related to the interim arrangements contemplated by this clause (i) OrthoRecon Products or the Business, in accordance 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 terms. 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) prior 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 Closing to Seller in writing that Buyer does not need cause the counterparty 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 each Shared Contract that is not a Designated 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 Backstop Designated new Contract with such counterparty on substantially the same terms as exist under such Non-Assignable Shared Contract, in each case as of the case may beClosing. With The portion related to the OrthoRecon Products or the Business 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 portion to Purchaser as of the Closing such Non-Assignable Shared Contract in accordance with its terms. Purchaser and Seller understand and agree that with respect to Liabilities pursuant to, under or relating to a given Backstop Designated any Shared Contract, Seller may require transition services from Purchaser to provide it with the rights and benefits of such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract, be allocated from time to time between Seller and the Retained Subsidiaries, on the one hand, and Buyer and the Purchased Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received (Shared Contract to the extent such contract relates to the Liabilities relate to a specific period, over such periodRetained Business, and otherwise over Purchaser agrees to provide such services to Seller in the term of the applicable Backstop Designated Shared Contract, measured up manner set forth in (and subject to the date of terms and conditions of) the allocation, without duplicationTransition Services Agreement.
(b) by Seller and Any Shared Contract that is a Non-Assignable Shared Contract for which the Retained Subsidiaries, on arrangements described in Section 1.8(a) could not be entered into prior to the one hand, or Buyer and the Purchased Companies, on the other hand, under the relevant Backstop Designated Shared Contract. Notwithstanding the foregoing, each Party Closing shall be solely responsible for any and all Liabilities a Non-Transferable Asset subject to the extent arising out of or relating to such Party’s (or its Subsidiaries’) breach of any such Backstop Designated Shared Contract. It is acknowledged that for the purposes of this Section 5.05 changes in volume metrics, as well as changes to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similar1.9.”
Appears in 1 contract
Sources: Asset Purchase Agreement (Wright Medical Group Inc)
Shared Contracts. Sellera. Notwithstanding anything to the contrary herein, on Shared Contracts and any rights or obligations thereunder shall not be deemed to be the one handsole assets of the Group Companies, and Buyer, on Parent or any of the other hand, shall, and shall cause their respective controlled Affiliates to, cooperate and Retained Companies. The Parties shall use their commercially reasonable best efforts to cause the Shared Contracts set forth in Schedule 5.05(a) (collectively, the “Designated Mirrored Shared Contracts”) to be replaced with separate contract Contracts that provide that Sellers (with respect to the Retained Businesses) and Buyer (with respect to the Business) receive only such rights and obligations (the “Replacement Contracts”) that provide Buyer or any Purchased Company with contract rights and obligations (including under a replacement Contract as to pricing metrics) under the Designated Shared Contracts that are substantially similar to those contract rights and obligations used by it (including as or, in the case of Buyer, used by Sellers with respect to pricing metricsthe Business) utilized by Seller in the conduct of the Business its business immediately prior to the Closingdate hereof. 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 The Parties agree 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 such Mirrored Shared Contracts prior to from the date hereof until the Closing Date.
b. Buyer shall be solely responsible for any additional Buyer-related costs or fees arising from and for under a period of one hundred eighty (180) days following the Closing. In additionreplacement Contract, 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 in connection 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 Mirrored Shared Contract”), such Backstop Designated Shared Contract shall be automatically deemed set forth on Schedule 5.05(b) on the Closing Date and, until or in connection with any arrangement described in this Section 5.04. Until any such Backstop Designated Mirrored Shared Contract is separated or otherwise replaced, but in no event longer than one hundred eighty (180) daysseparated, to the extent permissible under Law and under the terms of such Backstop Designated Mirrored Shared Contract, each of the Parties shall (i) Seller shall continue to as of the Closing Date, assume and perform the Liabilities and obligations under such Backstop Designated Mirrored Shared Contract at relating to its respective business or that of its Affiliates (and shall promptly reimburse 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 other Party for any out-of-pocket costs and reasonable expenses relating thereto incurred by the other Party 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 documentationits Affiliates)), 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 Mirrored Shared Contract relating to the respective businesses business of the other Party (or its respective Affiliates) Affiliates and (iii) Buyer and Seller shall use commercially reasonable efforts endeavor to institute alternative arrangements intended to put Confidential the Parties in a substantially similar the same economic position as if such Backstop Designated Mirrored Shared Contract were separated into Replacement Contracts in accordance with this Section 5.05as of the date hereof; provided thatprovided, notwithstanding however, that if the foregoing provisions Parties are not able to effect the separation of this paragraphany Mirrored Shared Contract by the Closing Date, for a period of one hundred eighty (180) days following the Closing, (x) Seller then Sellers and their Affiliates shall have no further obligation to Buyer or its Affiliates shall renew each Designated Shared Contract upon the expiration or termination thereof if Buyer has not entered into a Replacement Contract in with respect of thereto and may freely terminate 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 Mirrored Shared Contract. For a period of one hundred eighty (180) days following the Closing, Buyer and Seller shall reasonably cooperate to replace be solely responsible for replacing any Backstop Designated Mirrored 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. hereunder.
c. With respect to Liabilities pursuant to, under or relating to a given Backstop Designated Mirrored Shared ContractContract (“Mirrored Shared Contractual Liabilities”), such Mirrored Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contractother Transaction Document, be allocated from time to time between Seller and the Retained SubsidiariesSellers, on the one hand, and Buyer Buyer, on the other hand, as follows:
(i) first, to the extent a Mirrored Shared Contractual Liability is incurred exclusively in respect of a benefit received by the Retained Businesses or the Business, such Liability shall constitute a Liability of Sellers or Liability of Buyer, respectively; and
(ii) second, to the extent a Mirrored Shared Contractual Liability cannot be so allocated under clause (i) above, such Liability shall be allocated to Sellers, on the one hand, and the Purchased Companiesto Buyer, on the other hand, as the case may be, based on the relative proportions proportion of total benefits received ((A) to the extent the Liabilities relate to a specific period, over such period, period and (B) otherwise over the term of the applicable Backstop Designated Mirrored Shared Contract, measured up to the date of the allocation, without duplication) by Seller and the Retained SubsidiariesBusinesses, on the one hand, or Buyer and the Purchased CompaniesBusiness, on the other hand, under the relevant Backstop Designated Mirrored Shared Contract. Notwithstanding .
d. If Sellers, on the foregoingone hand, each Party shall be solely responsible or Buyer, on the other hand, receives any benefit or payment under any Mirrored Shared Contract which was intended for any and all Liabilities the other Party, the Parties will use their respective commercially reasonable efforts to deliver, transfer or otherwise afford such benefit or payment to the extent arising out of or relating to such other Party’s (or its Subsidiaries’) breach of any such Backstop Designated Shared Contract. It is acknowledged that for the purposes of this Section 5.05 changes in volume metrics, as well as changes to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similar.”
Appears in 1 contract
Sources: Equity Purchase Agreement (Pursuit Attractions & Hospitality, Inc.)
Shared Contracts. Seller, on the one hand, (a) From 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) (collectively, 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 after the Closing Date and for a period of one hundred eighty (180) days following so long as the Closing. In additionTransition Services Agreement remains in effect, 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 cause the counterparty 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 Transferred Contract or to enter into a Backstop Designated new agreement, 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 Contract that are related to the Business; provided, that Seller shall not 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.
(b) From and after the Closing Date and for so long as the case may be. Transition Services Agreement remains in effect, Buyer shall, and shall cause its Affiliates to use commercially reasonable efforts to cause the counterparty to any Shared Contract that is identified on Section 7.5(b) of the Business 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 or its Affiliates with respect to the matters addressed by such Shared Contract that are not related to the Business; provided, that Buyer shall not 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.
(c) With respect to Liabilities pursuant to, under or relating to any Shared Contract that is not a given Backstop Designated Shared Transferred Contract, until such Liabilities shall, unless otherwise allocated time as Buyer or one of its Affiliates enters into a new agreement with the counterparty to the Shared Contract pursuant to this Agreement Section 7.5(a), Seller shall use Consent Efforts, with Buyer’s cooperation, to implement a mutually agreeable arrangement by which Buyer or a Replacement Contractone of its Affiliates would, in compliance with Applicable Law, be allocated from time able to time between Seller obtain all of the benefits and assume the Retained Subsidiaries, on obligations and bear the one hand, and Buyer and the Purchased Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received (economic burdens associated with such Shared Contract to the extent related to the Liabilities relate 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 a specific periodBuyer, over 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 periodShared 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 alternative arrangements contemplated in clauses (A) and otherwise over (B) of this Section 7.5(c) shall be made available for the term of the applicable Backstop Designated Shared Contract, measured up Contract and charged at no additional cost to Buyer other than the those costs arising under such Shared Contract with respect to the date Business that are passed through to Buyer. The costs of obtaining any Third-Party Consents in connection with the allocation, without duplicationarrangements contemplated in this Section 7.5(c) by Seller and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased Companies, on the other hand, under the relevant Backstop Designated Shared Contract. Notwithstanding the foregoing, each shall be allocated as described in Section 7.4(b)(i); it being understood that neither Party shall be solely responsible for required to expend any and all Liabilities amount in order to the extent arising out obtain any such Third-Party Consent in excess of or relating to such Party’s (or its Subsidiaries’) breach share of any such Backstop Designated Shared Contract. It is acknowledged that for the purposes of this costs as provided in Section 5.05 changes in volume metrics, as well as changes to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similar7.4(b)(i).”
Appears in 1 contract
Sources: Purchase and Sale Agreement (Hartford Financial Services Group Inc/De)
Shared Contracts. Seller, on the one hand, and Buyer, on the other hand, shall, and shall cause their respective controlled Affiliates Subsidiaries to, cooperate with each other and shall use their commercially reasonable best efforts to cause the Shared Contracts set forth in Schedule 5.05(a5.04(a) (collectivelythe “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 contract rights and obligations contracts (the “Replacement Contracts”) that provide that Buyer or any Purchased Group Company, in the case of the Buyer Designated Shared Contracts, or any Retained Company with designated by Seller, in the case of the Seller Designated Shared Contracts, receives contract rights and obligations (including as to pricing metrics) under the Designated Shared Contracts Replacement Contracts, as applicable, that are substantially similar to those contract rights and obligations (including as to pricing metrics) 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 Closing. Buyer shall be solely responsible for any additional costs or fees arising from and Seller shall each bear one-half (1/2) of the costs and expenses associated with first obtaining and/or entering into any under a Replacement Contract (e.g.for a Buyer Designated Shared Contract, 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 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 Contracts pursuant to Contract, or in connection with any arrangement with respect thereto described in this Section 5.05; provided5.04. For the avoidance of doubt, furthernotwithstanding anything to the contrary herein, that neither Seller, 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 all ongoing (i.e., going forwardany Liabilities resulting from such Replacement Contracts, including payments due at any increases in pricing or other costs arising as a result of 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 transactions contemplated by this Section 5.05Agreement. 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 Liabilities pursuant to, under or relating to a given Backstop Designated Shared Contract, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract, be allocated from time to time between Seller and the Retained Subsidiaries, on the one hand, and Buyer and the Purchased Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term of the applicable Backstop Designated Shared Contract, measured up to the date of the allocation, without duplication) by Seller and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased Companies, on the other hand, under the relevant Backstop Designated Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible for any and all Liabilities to the extent arising out of or relating to such Party’s (or its Subsidiaries’) breach of any such Backstop Designated Shared Contract. It is acknowledged that for the purposes of this Section 5.05 changes in volume metrics, as well as changes to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similar.”49
Appears in 1 contract
Sources: Securities Purchase Agreement (Centerpoint Energy Inc)
Shared Contracts. Seller(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 Vitro Entities, on the one hand, and Buyerthe Acquired Companies, on the other hand, shallbased on the relative proportions of total 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) by the Vitro Entities, on the one hand, and the Acquired Companies, on the other hand. Notwithstanding the foregoing, Sellers and the Acquired Companies shall cause be responsible for any and all Liabilities arising out of or resulting from their (or their respective controlled Affiliates toAffiliates') breach of the relevant Shared Contract to which this Section 5.08 otherwise pertains, cooperate except that 51% of any Liabilities arising out of or resulting from the breach, prior to the 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 Acquired Companies of the relevant Shared Contract shall be allocated to Purchasers.
(b) The Parties have determined that it is advisable that the Shared Contracts set forth in Section 5.08(b) of the Disclosure Schedule ("Mirrored Shared Contracts") be separated into separate Contracts between the appropriate third party and either the Vitro Entity owning or operating the applicable Excluded Business or the Acquired Companies with respect to Business. Each Seller shall hereafter use their commercially reasonable best efforts to cause the Mirrored Shared Contracts set forth in Schedule 5.05(a) (collectively, the “Designated Shared Contracts”) to be replaced with separate contract 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 (the “Replacement Contracts”) that provide Buyer or any Purchased Company with contract rights and obligations (including under a replacement Contract as to pricing metrics) under the Designated Shared Contracts that are substantially similar to those contract 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.Business, transfer fees, deposits, etc.); provided, however, that neither Buyer nor Seller shall Sellers give no assurances that any such replacement Contracts will 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 5.05obtained. Buyer and Seller The Parties shall cooperate and provide each other with reasonable assistance in effecting such separation of the Designated Mirrored Shared Contracts prior to the Closing and for a period of one hundred eighty (180) days six months following the Closing (with no obligation on the part of any Party to pay any costs or fees with respect to such assistance). Prior to Closing. In addition, Seller shallSellers shall have the principal right and obligation to negotiate the separation of Mirrored Shared Contracts with third party vendors, and Purchasers shall cause its controlled Affiliates to, 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 one hundred eighty days (180six 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) use their reasonable best efforts as "IT/Software Agreements", Purchasers shall bear all licensing fees arising from or related to cause any Contract 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 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 Sellers' responsibility limited in the term sheet regarding such arrangement provided aggregate to Buyer prior to $120,000 ("Sellers' Mirrored Shared Contract Fees").
(c) If the date hereof, or such other terms as are reasonably requested by Buyer. If Buyer and Seller Parties are not able to effect the separation of a Designated Mirrored Shared Contract (each a “Backstop Designated Shared Contract”)effective as of the Closing, such Backstop Designated Shared Contract shall be automatically deemed set forth on Schedule 5.05(b) on the Closing Date andthen, until any such Backstop Designated Mirrored Shared Contract is separated or otherwise replaced, but in no event longer than one hundred eighty (180) daysseparated, to the extent permissible under Law and under the terms of such Backstop Designated Mirrored Shared Contract, each of the Parties shall (i) Seller shall continue to assume and perform the Liabilities and obligations under such Backstop Designated Mirrored Shared Contract at relating to its respective business or that of its Affiliates (and shall promptly reimburse 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 other Parties for any out-of-pocket costs and expenses relating thereto incurred by any other Party 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)its Affiliates), 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) allocated in accordance 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 SellerSection 5.08(a), (ii) Buyer and Seller shall hold in trust for the benefit of the other PartyParties, and shall promptly forward to the other PartyParties, any monies or other benefits received pursuant to such Backstop Designated Mirrored Shared Contract relating to the respective businesses of the other Party Parties (or its their respective Affiliates) and (iii) Buyer and Seller shall use commercially reasonable efforts endeavor to institute alternative arrangements intended to put the Parties in a substantially similar the same economic and operational position as if such Backstop Designated Mirrored Shared Contract were separated into Replacement Contracts in accordance with this Section 5.05separated; provided provided, however, that, notwithstanding if the foregoing provisions Parties are not able to effect the separation of this paragraph, for a period of one hundred eighty (180) days following any Mirrored Shared Contract within six months after the Closing, (x) Seller then Sellers shall have no further obligation to Purchasers, the Acquired Companies or their Affiliates with respect thereto 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 may freely terminate such Designated Mirrored Shared Contract; and provided, unless Buyer confirms to Seller in writing further, that Buyer does not need to receive any amounts owed by one Party (the benefit of such Designated Shared Contract, and (y"Payor Party") 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 other Party (the benefit of such Designated Shared Contract. For a period of one hundred eighty (180"Payee Party") 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 Liabilities pursuant to, under or relating to a given Backstop Designated Shared Contract, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract, Section 5.08(c)(i) may be allocated satisfied at the Payor Party's option by setting off such amounts against any amounts owed to it from time the Payee Party pursuant to time between Seller and the Retained Subsidiaries, on the one hand, and Buyer and the Purchased Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term of the applicable Backstop Designated Shared Contract, measured up to the date of the allocation, without duplication) by Seller and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased Companies, on the other hand, under the relevant Backstop Designated Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible for any and all Liabilities to the extent arising out of or relating to such Party’s (or its Subsidiaries’) breach of any such Backstop Designated Shared Contract. It is acknowledged that for the purposes of this Section 5.05 changes in volume metrics, as well as changes to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similar5.08(c)(i).”
Appears in 1 contract
Sources: Purchase Agreement (Vitro Sa De Cv)
Shared Contracts. Seller, on the one hand, The Parties acknowledge 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) (collectively, the “Designated Shared Contracts”) to be replaced with separate contract rights and obligations (the “Replacement Contracts”) agree that provide Buyer or any Purchased Company with contract rights and obligations (including as to pricing metrics) under the Designated Shared Seller has entered into certain Contracts that are substantially similar to those contract rights and obligations Shared Contracts, as identified on Schedule 5(h). Following the Closing, until the earlier of (including as to pricing metricsi) utilized by Seller in the conduct termination or expiration of the Business prior Shared Contract (to the Closing. extent related to the Business) or (ii) Buyer’s entry into a Replacement Buyer Contract as provided below, (a) Buyer shall cause Target to perform the components of and all other obligations under the Shared Contracts related to the Business, (b) Buyer and Seller Target shall each bear one-half be solely responsible for all services, deliveries, and other obligations related to the Business (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 during this period 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 will be responsible for all ongoing (i.e.billing and collection responsibilities under the Shared Contracts, 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 whether 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 not related 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)Business), and Buyer shall indemnify and hold (c) Target will be entitled to receive all payments under the Seller Indemnitees harmless from and against any and Shared Contracts for all Liabilities based upon, arising out of or relating to the interim arrangements contemplated services provided by this clause (i) Target with respect to the Backstop Designated Business under the Shared Contracts in respect of the 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 Days during the month to be agreed upon by Buyer and Seller)). Seller shall be solely responsible for all other obligations under the Shared Contracts, except to the extent any such Liability arises out of the gross negligence or willful misconduct of . Seller, (ii) Target and 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 cooperate in administering the Shared Contracts. The Shared Contracts, to put 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 renewal contract by Seller). Seller shall not terminate any Shared Contract or enter into any amendment of a Shared Contract (to the extent such an amendment would have an adverse effect on the portion of the Shared Contract related to the Business), without Target’s express advance written consent in each instance. If Seller is unable to subcontract the portions of the Shared 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, (i) the Parties shall take such other actions in a substantially similar economic 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 Shared Contract related to the Business are to inure from and after the Closing to Buyer, (ii) Buyer shall otherwise perform and be responsible for all obligations and liabilities solely with respect to such portions of the Shared Contract, as if such Backstop Designated the portions of the Shared Contract were separated into Replacement Contracts in accordance with this Section 5.05; provided thatrelated to the Business had been subcontracted to Buyer hereunder, notwithstanding and (iii) Seller shall be solely responsible for all other obligations under the foregoing provisions of this paragraphShared Contracts. In addition, for a period of one hundred eighty (180) days following the Closing, (xi) 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 with respect to replace any Backstop Designated communications with the counterparty to such Shared Contracts Contract related to the extent such Backstop Designated Shared Contracts are not separated or transitioned hereunder andexecution and delivery of this Agreement and the consummation of the Transactions, for the avoidance of doubtand neither Buyer, Target nor Seller shall be under no obligation hereunder 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 (xincluding over e-mail) deliver between Buyer and Seller, provided that the foregoing shall not apply to Buyer the same pricing metrics in any Designated Shared Contract communications by Target or Seller, as applicable, with such counterparty in connection with providing services and deliveries to such counterparty in connection with the Shared Contracts or 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 any Replacement Contract in respect thereof or providing an alternative arrangement Buyer Contracts), and (ii) Buyer shall cause Target to use commercially reasonable efforts to enter into a new contract and/or short form assignment with respect to a Backstop Designated the portion of the Shared Contract or Related to the Business (ya “Replacement Buyer Contract”) after in place of each of 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 Liabilities pursuant to, under or relating to a given Backstop Designated Shared Contract, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract, be allocated from time to time between Seller and the Retained Subsidiaries, on the one hand, and Buyer and the Purchased Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received Contracts (to the extent related to the Liabilities relate to a specific period, over such periodBusiness) within 90 days following the Closing or as soon as reasonably practicable thereafter, and otherwise over the term of the applicable Backstop Designated Shared Contract, measured up to the date of the allocation, without duplication) by Seller shall cooperate with Target and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased Companies, on the other hand, under the relevant Backstop Designated Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible for any and all Liabilities to the extent arising out of or relating to such Party’s (or its Subsidiaries’) breach of any such Backstop Designated Shared Contract. It is acknowledged that for the purposes of this Section 5.05 changes in volume metrics, as well as changes to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similarconnection therewith.”
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Healthstream Inc)
Shared Contracts. SellerBuyer agrees and acknowledges that Parent and/or its Affiliates are parties to Contracts for products, on materials or services that are used or sold by or provided to the one hand, Business and Buyer, on the other handbusinesses of Parent and/or its Affiliates, shall, and shall cause their respective controlled Affiliates to, cooperate and shall use their reasonable best efforts to cause the Contracts as set forth in Schedule 5.05(a) Section 5.20 of the Parent Disclosure Schedule, and which Contracts will not be assigned by Parent or its applicable Affiliates to Buyer (collectivelysuch Contracts, 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 Parent 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 use 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 commercially 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 take such actions as may 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 otherwise cooperate with Buyer, in connection with Buyer’s efforts to enter into a separate agreement with the separation of a Designated other party or parties to any Shared Contract (each such party, a “Backstop Designated 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 applicable Seller that is party to such Backstop Designated Included Shared Contract shall be automatically deemed set forth shall, for a period not to exceed twelve (12) months following the Closing Date, use commercially reasonable efforts to provide Buyer with the rights and benefits (subject to Buyer’s agreement to bear the related costs, burdens and obligations of such Included Shared Contract associated with obtaining such rights and benefits for the account of Buyer) under such Included Shared Contract to the same extent the Business enjoyed those rights and benefits prior to the Closing (whether under the Transition Services Agreement or otherwise), including obtaining such goods and/or services from the Vendor on Schedule 5.05(b) behalf of Buyer under each such Included Shared Contract on the Closing Date andsame terms as in effect as of the Closing; provided, 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. that Buyer shall promptly, but in no event later than thirty (30a) days following receipt of a reasonably detailed invoice from Seller, reimburse Seller for any pay or satisfy all the out-of-pocket costs costs, expenses, obligations and expenses or payments liabilities incurred by Parent and its Affiliates in connection with the foregoing and (b) comply with all of obligations made by Seller under such Backstop Designated the terms and conditions of each Included Shared Contract (which invoices shall be delivered by Seller to as if such Buyer on were 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 party thereto 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 required for the benefit applicable Seller to procure the goods and/or services on behalf of the other Party, and shall promptly forward to the other Party, any monies or other benefits received pursuant to Buyer under each 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 Included 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 Liabilities pursuant to, under or relating to a given Backstop Designated Shared Contract, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract, be allocated from time to time between Seller and the Retained Subsidiaries, on the one hand, and Buyer and the Purchased Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term of the applicable Backstop Designated Shared Contract, measured up to the date of the allocation, without duplication) by Seller and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased Companies, on the other hand, under the relevant Backstop Designated Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible for any and all Liabilities to the extent arising out of or relating to such Party’s (or its Subsidiaries’) breach of any such Backstop Designated Shared Contract. It is acknowledged that for the purposes of this Section 5.05 changes in volume metrics, as well as changes to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similar.”
Appears in 1 contract
Shared Contracts. SellerThe Retained Companies, on the one hand, and Buyerthe Buyers, on the other hand, shall, and shall cause their respective controlled Affiliates Subsidiaries to, cooperate with each other and shall use their commercially reasonable best efforts to cause the Shared Contracts set forth in on Schedule 5.05(a5.16(a) (collectivelythe “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 contract rights and obligations contracts (the “Replacement Contracts”) that provide Buyer that the Buyers or any Purchased Group Company with 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 (including as to pricing metrics) under the Designated Shared Contracts Replacement Contracts, as applicable, that are substantially similar to those contract rights and obligations (including as to pricing metrics) utilized by Seller under the Designated Shared Contracts in the conduct of the Business effect prior to the Closing. Buyer The Buyers shall be solely responsible for any additional costs or fees arising from and Seller shall each bear one-half (1/2) of the costs and expenses associated with first obtaining and/or entering into any under a Replacement Contract (e.g.for a Buyer Parent Designated Shared Contract, 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 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 Contracts pursuant to Contract, or in connection with any arrangement with respect thereto described in this Section 5.05; provided5.16. For the avoidance of doubt, furthernotwithstanding anything to the contrary herein, that 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 all ongoing (i.e., going forwardany Liabilities resulting from such Replacement Contracts, including payments due at any increases in pricing or other costs arising as a result of the time of first obtaining and/or entering into any Replacement Contract intended to cover Buyer’s transactions contemplated by this Agreement. The Buyers 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 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 one hundred eighty ninety (18090) 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 BuyerClosing Date. If Buyer the Buyers and Seller the Sellers are not able to effect the separation of a Designated Shared Contract (each a “Backstop Designated Shared Contract”)prior to the Closing, such Backstop Designated Shared Contract shall be automatically deemed set forth on Schedule 5.05(b) on then after the Closing Date andClosing, until any such Backstop Designated Shared Contract is separated or otherwise replaced, but in no event longer than one hundred eighty (180) daysseparated, to the extent permissible under Law and under the terms of such Backstop Designated Shared Contract, each applicable Group Company and each applicable Retained Company shall (i) Seller shall continue to assume and perform the obligations Liabilities under such Backstop Designated Shared Contract at relating to its business or the sole cost businesses of their Subsidiaries (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, promptly reimburse Seller the other Party for any out-of-pocket costs and reasonable expenses relating thereto incurred by the other Party 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)its Subsidiaries), 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 allocated in accordance with 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 SellerSection 5.16, (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 business of the other Party (or the business of its respective AffiliatesSubsidiaries) 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 was separated into Replacement Contracts in accordance with this Section 5.05as described above; provided that, notwithstanding the foregoing provisions of this paragraphforegoing, for a period of one hundred eighty (180) days following the Closing, (x) Seller and its Affiliates no Party shall have any obligation to renew each any 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 Affiliateseither party thereto, Seller and its Affiliates the applicable Party shall not terminate be prohibited from terminating or cancel canceling such Designated Shared Contract if as permitted pursuant to the terms thereof. The Buyers shall be solely responsible for replacing any Buyer has not entered into a Replacement Contract in respect of such Parent Designated Shared ContractContracts, unless to the extent such Buyer confirms to Seller in writing that Buyer does not need to receive the benefit of such Parent Designated Shared Contract. For a period of one hundred eighty (180) days following Contracts are not separated as described above prior to the Closing, Buyer and . The Retained Companies shall be solely responsible for replacing any Seller shall reasonably cooperate to replace any Backstop Designated Shared Contracts to the extent such Backstop Seller Designated Shared Contracts are not separated or transitioned hereunder and, for as described above prior to 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 beClosing. With respect to Liabilities pursuant to, under or relating to resulting from a given Backstop Designated Shared Contract, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract, be allocated from time to time between Seller and the Retained SubsidiariesCompanies, on the one hand, and Buyer the Buyers and the Purchased Group Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term of the applicable Backstop such Designated Shared Contract, measured up to the date of the allocation, without duplication) by Seller and the Retained SubsidiariesCompanies, on the one hand, or Buyer the Buyers and the Purchased Group Companies, on the other hand, under the relevant Backstop such Designated Shared Contract. Notwithstanding the foregoing, each 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 relating to such Party’s (or its Subsidiaries’) breach of any such Backstop Designated Shared Share Contract. It is acknowledged that for the purposes of this Section 5.05 5.16, what constitutes “substantially similar” shall be determined after taking into account changes in volume and similar pricing metrics, as well as changes to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similar.”
Appears in 1 contract
Sources: Securities and Asset Purchase Agreement (Modine Manufacturing Co)
Shared Contracts. Seller(a) Notwithstanding anything to the contrary herein, on Shared Contracts and any rights or obligations thereunder shall not be deemed to be assets of the one hand, and Buyer, on the other hand, shall, and shall cause their respective controlled Affiliates to, cooperate and Group Companies. The Parties shall use their commercially reasonable best efforts to cause the Shared Contracts set forth in Schedule 5.05(a) 5.04 (collectively, the “Designated Mirrored Shared Contracts”) to be replaced with separate contract Contracts that provide that Sellers (with respect to the Retained Companies) and Buyer (with respect to the Group Companies) receive such rights and obligations (the “Replacement Contracts”) that provide Buyer or any Purchased Company with contract rights and obligations (including under a replacement Contract as to pricing metrics) under the Designated Shared Contracts that are substantially similar to those contract rights and obligations used by it (including as or, in the case of Buyer, used by Sellers with respect to pricing metricsthe Group Companies) utilized by Seller in the conduct of the Business its business immediately prior to the ClosingClosing Date. 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 The Parties agree 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 such Mirrored Shared Contracts prior to the Closing and for a period of one hundred eighty (180) days 12 months following the Closing. In additionClosing Date.
(b) Buyer shall be solely responsible for any additional Buyer-related costs or fees arising from and under a replacement Contract, 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 in connection 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 Mirrored Shared Contract”), such Backstop Designated Shared Contract shall be automatically deemed set forth on Schedule 5.05(b) on the Closing Date and, until or in connection with any arrangement described in this Section 5.04. Until any such Backstop Designated Mirrored Shared Contract is separated or otherwise replaced, but in no event longer than one hundred eighty (180) daysseparated, to the extent permissible under Law and under the terms of such Backstop Designated Mirrored Shared Contract, each of the Parties shall (i) Seller shall continue to assume and perform the Liabilities and obligations under such Backstop Designated Mirrored Shared Contract at relating to its respective business or that of its Affiliates (and shall promptly reimburse 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 other Party for any out-of-pocket costs and reasonable expenses relating thereto incurred by the other Party 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 documentationits Affiliates)), 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 Mirrored Shared Contract relating to the respective businesses business of the other Party (or its respective Affiliates) Affiliates and (iii) Buyer and Seller shall use commercially reasonable efforts endeavor to institute alternative arrangements intended to put the Parties in a substantially similar the same economic position as if such Backstop Designated Mirrored Shared Contract were separated into Replacement Contracts in accordance with this Section 5.05as of the Closing Date; provided thatprovided, notwithstanding however, that if the foregoing provisions Parties are not able to effect the separation of this paragraph, for a period of one hundred eighty (180) days following the Closing, (x) Seller and its Affiliates shall renew each Designated any Mirrored Shared Contract upon within 12 months after the expiration or termination thereof if Buyer has not entered into a Replacement Closing Date, then Sellers and their Affiliates may freely terminate such Mirrored Shared 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) each Party will have no further obligations 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 other Party with 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 thereto (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 including with respect to a Backstop Designated the Mirrored Shared Contract or Contractual Liabilities set forth in Section 5.04(c) below).
(yc) 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 Liabilities pursuant to, under or relating to a given Backstop Designated Mirrored Shared ContractContract (“Mirrored Shared Contractual Liabilities”), such Mirrored Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contractother Transaction Document, be allocated from time to time between Seller and the Retained SubsidiariesSellers, on the one hand, and Buyer Buyer, on the other hand, as follows:
(i) first, to the extent a Mirrored Shared Contractual Liability is incurred exclusively in respect of a benefit received by the Retained Companies or the Group Companies, such Liability shall constitute a Liability of Sellers or Liability of Buyer, respectively; and
(ii) second, to the extent a Mirrored Shared Contractual Liability cannot be so allocated under clause (i) above, such Liability shall be allocated to Sellers, on the one hand, and the Purchased Companiesto Buyer, on the other hand, as the case may be, based on the relative proportions proportion of total benefits received ((A) to the extent the Liabilities relate to a specific period, over such period, period and (B) otherwise over the term of the applicable Backstop Designated Mirrored Shared Contract, measured up to the date of the allocation, without duplication) by Seller and the Retained SubsidiariesCompanies, on the one hand, or Buyer and the Purchased Group Companies, on the other hand, under the relevant Backstop Designated Mirrored Shared Contract. Notwithstanding .
(d) If Sellers, on the foregoingone hand, each Party shall be solely responsible or Buyer, on the other hand, receives any benefit or payment under any Mirrored Shared Contract which was intended for any and all Liabilities the other Party, the Parties will use their respective commercially reasonable efforts to deliver, transfer or otherwise afford such benefit or payment to the extent arising out of or relating to such other Party’s (or its Subsidiaries’) breach of any such Backstop Designated Shared Contract. It is acknowledged that for the purposes of this Section 5.05 changes in volume metrics, as well as changes to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similar.”
Appears in 1 contract
Sources: Equity Purchase Agreement (Topgolf Callaway Brands Corp.)
Shared Contracts. Seller(a) 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 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 one handClosing Date, and Buyerany Shared Contract has not been separated pursuant to Section 6.13(a), on the other hand, shall, and parties shall cause their respective controlled Affiliates to(i) until the date that is twelve months following the Closing Date, cooperate and shall use their respective commercially reasonable best efforts to cause the Contracts set forth separate any such Shared Contract in Schedule 5.05(aaccordance with clauses (i), (ii) and (collectively, 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 (1/2iii) of Section 6.13(a) and (ii) until 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 earlier of such 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 replacedthe date that is twelve months following the Closing Date, but cooperate in no event longer than one hundred eighty a mutually agreeable arrangement (180A) daysunder 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 associated with the Shared Contract, including through the Transition Services Agreement, subcontracting, sublicensing or subleasing to the extent permissible Company and (B) under Law which Seller and under its Subsidiaries shall operate any such Shared Contract in the Ordinary Course of Business in accordance with the terms of such Backstop Designated Shared Contract. At Buyer’s written request from time to 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 that in each case each party is put in the same economic position as if such Shared Contract had been separated as of the Closing Date.
(c) Notwithstanding anything to the contrary in this Agreement: (i) no Replacement Contract shall impose any Liability on Seller or its Affiliates after the Closing; (ii) neither Seller nor any of its Affiliates shall continue be required (A) to perform pay third parties to obtain consent with respect to the obligations under such Backstop Designated separation of any Shared Contract at or entry into a Replacement Contract, or (B) to commence or participate in any Litigation or offer or grant any accommodation (financial or otherwise) to any third party to provide Buyer or the sole cost and expense of Buyer (i.e. Buyer shall promptly, but in no event later than thirty (30) days following receipt of Company with the benefits under 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 or with a Replacement Contract; and (which invoices iii) no representation, warranty or covenant (subject to compliance with Section 6.13(a) and Section 6.13(b)) of Seller contained in the Transaction Agreements shall be delivered by breached, or deemed breached, no condition shall be deemed not satisfied, and neither Seller nor any of its Affiliates will have any Liability whatsoever to Buyer on a monthly basis and shall aggregate all out-of-pocket costs and expenses and payment or any of obligations made by Seller under all Backstop Designated Shared Contracts during such monthits Affiliates, together with reasonable supporting documentation)), and Buyer shall indemnify and hold the Seller Indemnitees harmless from and against any and all Liabilities based uponon, 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 failure to obtain any 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 termination 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 (yz) after the Closing Date to separate any Litigation commenced or transition, threatened by or provide Buyer with on behalf of 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 Liabilities pursuant to, under or relating to a given Backstop Designated Shared Contract, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract, be allocated from time to time between Seller and the Retained Subsidiaries, on the one hand, and Buyer and the Purchased Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term of the applicable Backstop Designated Shared Contract, measured up to the date of the allocation, without duplication) by Seller and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased Companies, on the other hand, under the relevant Backstop Designated Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible for any and all Liabilities to the extent Person arising out of or relating to such Party’s (the failure to obtain any Replacement Contract or its Subsidiaries’) breach the termination of any such Backstop Designated Shared Contract. It is acknowledged that for the purposes of this Section 5.05 changes in volume metrics, as well as changes to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similar.”
Appears in 1 contract
Shared Contracts. Seller, on the one hand, and Buyer, on the other hand, shall, and shall cause their respective controlled Affiliates to, cooperate and Seller shall use their its commercially reasonable best efforts to cause the Contracts set forth in Schedule 5.05(a) (collectivelyefforts, 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 no longer than the later of [***] (180[***]) days months and [***] following the Closing. In additionClosing (unless otherwise agreed under the Transition Services Agreement), 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 each 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 5.05, as such Schedule may be updated by Seller not less than three Business Days prior to Closing Date and, until to include any such Backstop Designated Shared Contract is separated or otherwise replacedContracts that are material to, but in no event longer than one hundred eighty (180) daysnot 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 permissible under Law and under the terms of Purchaser does not object to such Backstop Designated updates, in its reasonable discretion (each such Contract, a “Shared Contract, ”) to be equitably apportioned (i) Seller shall continue to perform such that the rights and 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 Purchaser and Seller shall hold in trust for the benefit of the other Party, are separated) through appropriate amendments 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 new 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 Contractprior to, 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 on 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 so that Purchaser shall be entitled to separate the economic rights and benefits, and shall be responsible for any related economic burden, relating to the Operations thereunder and Seller or transitionits applicable Affiliate shall be entitled to the economic rights and benefits, or provide Buyer with and shall be responsible for any rights or benefits underrelated economic burden, any relating to the balance of the subject matter of such Shared Contract that is (including any assets, properties or business not a Designated Shared Contract or a Backstop Designated Shared Contract, as the case may be. With respect required to Liabilities pursuant to, under or relating be transferred to a given Backstop Designated Shared Contract, such Liabilities shall, unless otherwise allocated Purchaser pursuant to this Agreement or a Replacement any 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 assigned to or executed by Purchaser, shall give Purchaser the ability to comment thereon and shall consider in good faith any reasonable comments provided by Purchaser. If any such Shared Contract cannot be so amended (and new Contracts cannot be entered into) within 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, be allocated from time then the Parties shall use their respective commercially reasonable efforts to time between 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 Retained Subsidiariessame 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, on sub-licensing or sub-leasing arrangements for the one hand, benefit of Purchaser or enforcing for the benefit of Purchaser any and Buyer and the Purchased Companies, on the other hand, as the case may be, based on the relative proportions all rights of total benefits received (Seller against any Third Party to a Shared Contract to the extent relating to the Liabilities relate Operations); provided, such arrangement does not infringe upon the legal rights of any Third Party, violate any Law or require Seller or any of its Affiliates to a specific periodextend any credit, over including by being liable for any order for which Purchaser has not prepaid such period, and otherwise over cost to Seller. The obligations of Seller pursuant to this Section 5.05 shall not extend beyond the remaining term of the applicable Backstop Designated Shared Contract, measured up to the date Contract as of the allocation, without duplication) by Seller and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased Companies, on the other hand, under the relevant Backstop Designated Shared ContractClosing Date. Notwithstanding the foregoing, each Party shall be solely responsible for any and all Liabilities to the extent arising out of or relating to such Party’s (or its Subsidiaries’) breach of any such Backstop Designated Shared Contract. It is acknowledged that for the purposes of this Section 5.05 changes in volume metrics, as well as changes to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similar.”
Appears in 1 contract
Shared Contracts. Seller(a) Subject to the provisions of this Section 2.11, 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 Shared Contract, subject to the terms and conditions of such Shared Contract (such rights, the "Shared Contract Rights"), and the Assumed Liabilities shall include those Liabilities exclusively relating to the Facility or a Purchased Asset which arise from and after the Initial Closing under a Shared Contract, subject to the 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 included in the Excluded Assets and the Excluded Liabilities, as applicable. For purposes of determining the scope of the Shared Contract Rights and Shared Contract Liabilities, the rights and Liabilities under each Shared Contract shall be equitably allocated among (a) the Facility and the Purchased Assets, on the one hand, and Buyer(b) the other business lines, facilities or other operations other than those solely related to the Facility and the Purchased Assets that will continue to be owned by Seller or its Affiliates, to the extent applicable, after the Initial Closing, on the other hand, shall, and shall cause their respective controlled Affiliates to, cooperate and shall use their reasonable best efforts to cause in accordance with the Contracts set forth in Schedule 5.05(afollowing equitable allocation principles:
(i) (collectively, 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) allocation 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(bcontrol;
(ii) on if there is no allocation in the Closing Date and, until any such Backstop Designated Shared Contract is separated or otherwise replaced, but as described 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 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 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 Backstop Designated Shared ContractsInitial Closing. As soon as practicable after the execution of this Agreement, except Purchaser and Seller shall make appropriate requests to obtain, at the extent any such Liability arises out of the gross negligence or willful misconduct 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 (iieach, a "Replacement Contract") Buyer that provide for the Shared Contract Rights and Seller shall hold in trust Shared Contract Liabilities for the benefit of Purchaser and the other PartyBusiness with the remaining rights and Liabilities for the benefit of Seller and its Affiliates, 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 Purchaser and Seller shall use commercially reasonable efforts to institute alternative arrangements intended 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 put the Parties in a substantially similar economic position as if such Backstop Designated Shared Contract were separated into 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 this Section 5.05its terms; provided that, notwithstanding the foregoing provisions of this paragraph, for a period of one hundred eighty (180) days following the Closing, (x) that Seller and its Affiliates shall renew each Designated Shared Contract upon not be liable or have any further responsibility to Purchaser for the expiration or termination thereof if Buyer has not entered into a Replacement Contract in respect failure of such Designated Shared Contractconsents, unless Buyer confirms approvals or Replacement Contracts to Seller be obtained, and, in writing that Buyer does not need to receive the benefit of such Designated Shared Contract, and (y) to the extent connection with any such Designated Shared Contract contains an “evergreen” provision that automatically renews such Designated Shared Contract unless terminated assignment or cancelled by Seller or its Affiliatesarrangement, 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 Liabilities pursuant to, under or relating to a given Backstop Designated Shared Contract, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract, be allocated from time to time between Seller and the Retained Subsidiaries, on the one hand, and Buyer and the Purchased Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term of the applicable Backstop Designated Shared Contract, measured up to the date of the allocation, without duplication) by Seller and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased Companies, on the other hand, under the relevant Backstop Designated Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible for any Liabilities relating to such assignment or arrangement or the Shared Contract Rights and all Liabilities to the extent Shared Contract Liabilities, and Purchaser shall indemnify and hold harmless Seller and its Affiliates from and against any Losses arising out of or relating related to any such Liabilities. Notwithstanding anything to the contrary, if any amount under any Shared Contract was prepaid by Seller prior to the Initial Closing and Purchaser will receive a Shared Contract Right with respect to such Party’s (or its Subsidiaries’) breach of any Shared Contract after the Initial Closing, then the Cash Consideration to be paid at the Initial Closing shall be increased by such Backstop Designated Shared Contract. It is acknowledged that for the purposes of this Section 5.05 changes in volume metrics, as well as changes to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similar.”prepaid amounts
Appears in 1 contract
Shared Contracts. Seller(a) Notwithstanding anything to the contrary herein, on Shared Contracts and any rights or obligations thereunder shall not be deemed to be Business Assets or Assets of the one hand, and Buyer, on the other hand, shall, and shall cause their respective controlled Affiliates to, cooperate and Company. Each Seller shall use their commercially reasonable best efforts to cause the Shared Contracts set forth in on Section 5.08 of the Disclosure Schedule 5.05(a) (collectively, the “Designated Mirrored Shared Contracts”) to be replaced with separate contract Contracts that provide that the Company shall receive such rights and obligations (the “Replacement Contracts”) that provide Buyer or any Purchased Company with contract rights and obligations (including under a replacement Contract as to pricing metrics) under the Designated Shared Contracts that are substantially similar to those contract Contract rights and obligations (including as to pricing metrics) utilized by Seller in the conduct of the Business prior to the ClosingBusiness. 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 The Parties shall cooperate and provide each other with reasonable assistance in effecting such separation of the Designated such Mirrored Shared Contracts prior to the Closing and for a period of one hundred eighty (180) days three months following the Closing. In addition.
(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, 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 hereofif any, or such other terms as are reasonably requested by Buyerin connection with any arrangement described in this Section 5.08. If Buyer and Seller the Parties are not able to effect the separation of a Designated Mirrored Shared Contract (each a “Backstop Designated Shared Contract”)prior to the Closing, such Backstop Designated Shared Contract shall be automatically deemed set forth on Schedule 5.05(b) on the Closing Date andthen, until any such Backstop Designated Mirrored Shared Contract is separated or otherwise replaced, but in no event longer than one hundred eighty (180) daysseparated, to the extent permissible under Law and under the terms of such Backstop Designated Mirrored Shared Contract, each of the Parties shall (i) Seller shall continue to assume and perform the Liabilities and obligations under such Backstop Designated Mirrored Shared Contract at relating to its respective business or that of its Affiliates (and shall promptly reimburse 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 other Party for any out-of-pocket costs and expenses relating thereto incurred by either other Party 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)its Affiliates), 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) allocated in accordance 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 SellerSection 5.08(c), (ii) Buyer and Seller shall hold in trust for the benefit of the other PartyParties, and shall promptly forward to the other PartyParties, any monies or other benefits received pursuant to such Backstop Designated Mirrored Shared Contract relating to the respective businesses of the other Party Parties (or its their respective Affiliates) and (iii) Buyer and Seller shall use commercially reasonable efforts endeavor to institute alternative arrangements intended to put the Parties in a substantially similar the same economic position as if such Backstop Designated Mirrored Shared Contract were separated into Replacement Contracts in accordance with this Section 5.05separated; provided provided, however, that, notwithstanding if the foregoing provisions Parties are not able to effect the separation of this paragraph, for a period of one hundred eighty (180) days following any Mirrored Shared Contract within three months after the Closing, (x) Seller and then the Bally Entities shall have no further obligation to Purchaser or its Affiliates shall renew each Designated Shared Contract upon the expiration or termination thereof if Buyer has not entered into a Replacement Contract in with respect of thereto and may freely terminate such Designated Mirrored Shared Contract; and provided, unless Buyer confirms to Seller in writing further, that Buyer does not need to receive any amounts owed by one Party (the benefit of such Designated Shared Contract, and (y“Payor Party”) to the extent 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 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 amounts owed to it from the Payee Party pursuant to Section 5.08(b)(i). Purchaser 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 be solely responsible for replacing any Backstop Designated Mirrored 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 hereunder.
(xc) 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 Liabilities pursuant to, under or relating to a given Backstop Designated Shared ContractContract (“Shared Contractual Liabilities”), such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement, an Ancillary Agreement or a Replacement Mirrored Shared Contract, be allocated from time to time between Seller and the Retained SubsidiariesSellers, on the one hand, and Buyer Purchaser and its Affiliates, on the Purchased Companiesother hand, as follows:
(i) first, to the extent a Liability is incurred exclusively in respect of a benefit received by the Excluded Business or the Business, such Liability shall be determined to be a Retained Liability or an Assumed Liability, respectively; and
(ii) second, to the extent a Liability cannot be so allocated under clause (i) above, such Liability shall be allocated to the 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 benefits received ((A) to the extent the Liabilities relate to a specific period, over such period, period and (B) otherwise over the term of the applicable Backstop Designated Shared Contract, measured up to the date of the allocation, without duplication) by Seller and the Retained SubsidiariesExcluded Business, on the one hand, or Buyer and the Purchased CompaniesBusiness, on the other hand, under the relevant Backstop Designated Shared Contract. Notwithstanding .
(d) From and after the foregoingClosing,
(i) until either (A) with respect to any Member whose membership arises from a Shared Membership Contract that is a Paid-In-Full Membership Contract or 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 Membership Contract, December 31, 2006, each Party of the Parties will, and 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 be solely responsible for use their commercially reasonable efforts to, and to cause their respective Affiliates to, notify the Company of any and all Liabilities to the extent arising out terminations of or relating other restrictions imposed on the rights of any health club members under such Shared Membership Contracts to use any Transferred Facility;
(iii) 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 Shared Membership Contracts to use any Excluded Facilities or Deferred Facilities, as the case may be; and
(iv) none of the 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 Membership Contracts or (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 renewals notifies the applicable health club members that the right to use the other Party’s (and its Affiliates’ Facilities or its Subsidiaries’) breach of any such Backstop Designated Shared Contract. It is acknowledged that for the purposes of this Section 5.05 changes in volume metricsExcluded Facilities, as well as changes to reflect the needs of the applicable Partycase may be, shall not be considered when determining whether contract rights and obligations are “substantially similarby such health club members will terminate on December 31, 2006.”
Appears in 1 contract
Sources: Purchase Agreement (Bally Total Fitness Holding Corp)
Shared Contracts. SellerAt or prior to Closing, on Ardagh shall assign, transfer and convey to an Ardagh Purchased Entity that portion of any Ardagh Shared Contract that relates to the one handArdagh Business, to the extent so related to the Ardagh Business, if so assignable, transferable or conveyable, so that at the Closing (x) the relevant Ardagh Purchased Entity shall be entitled to the rights and Buyer, on benefits of that portion of the other hand, shallArdagh Shared Contract that relates to the Ardagh Business, and shall cause their respective controlled Affiliates toassume the related portion of any Liabilities under such Ardagh Shared Contract and (y) Ardagh (or its applicable Affiliates) shall be entitled to the rights and benefits of that portion of the Ardagh Shared Contract other than those related to the Ardagh Business, cooperate and shall use their reasonable best efforts to cause assume or retain the Contracts set forth in Schedule 5.05(a) (collectively, the “Designated related portion of any Liabilities under such Ardagh 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.)Contract; provided, however, that neither Buyer nor Seller (i) in no event shall any Person be required to incur any further Liabilities or provide any financial accommodation assign, either in connection therewith its entirety or in connection with its obligations pursuant to Backstop Designated Shared Contracts pursuant to this Section 5.05; providedpart, 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 Ardagh Shared Contract that is not assignable by its terms without obtaining the required consent, approval or authorization and (ii) if any alternative arrangements entered into pursuant to this Section 5.05. Buyer Ardagh Shared Contract cannot be 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 Seller shall cooperate and provide each other with reasonable assistance in effecting such separation (2) the six (6) month anniversary of the Designated Shared Contracts prior Closing Date, Ardagh and NewCo will establish an agency or other similar arrangement reasonably satisfactory to the Closing Ardagh and for a period of one hundred eighty NewCo (180with any appropriate “firewalls” or similar procedures required under applicable Law) days following the Closing. In addition, Seller shall, and shall cause its controlled Affiliates to, for a period of one hundred eighty days to both (180x) 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) daysprovide NewCo, to the fullest extent permissible practicable under Law and under the terms of such Backstop Designated Ardagh Shared Contract, the claims, rights and benefits of those portions that relate to the Ardagh Business, and (iy) Seller shall continue cause NewCo to perform bear the obligations under related Liabilities pursuant to such Backstop Designated Ardagh 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 after the interim arrangements contemplated by Closing in accordance with this clause (i) with respect to the Backstop Designated Shared Contracts, except Agreement to the extent any such Liability arises out that NewCo receives the rights and benefits of the gross negligence or willful misconduct of Seller, (ii) Buyer and Seller shall hold in trust for the benefit portion of the other Party, and shall promptly forward Ardagh Shared Contracts that relate 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 Ardagh Business. Ardagh shall use commercially reasonable efforts to institute alternative arrangements intended to put enforce, at 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 request (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 benefit) of doubtNewCo, 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, of Ardagh arising from the portion of any Ardagh Shared Contract that is not a Designated Shared Contract assigned or a Backstop Designated Shared Contract, as the case may be. With respect transferred to Liabilities pursuant to, under or relating to a given Backstop Designated Shared Contract, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract, be allocated from time to time between Seller and the Retained Subsidiaries, on the one hand, and Buyer and the Purchased Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received (NewCo to the extent such rights are related to the Liabilities relate Ardagh Business. Following the date hereof, each of Ardagh and NewCo shall use commercially reasonable efforts to a specific periodobtain any consent, over such period, and otherwise over approval or authorization necessary to effect the term assignment of the applicable Backstop Designated portion of each Ardagh Shared Contract, measured up Contract that relates to the date of the allocation, without duplication) by Seller and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased Companies, on the other hand, under the relevant Backstop Designated Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible for any and all Liabilities Ardagh Business to the extent arising out of or relating to such Party’s (or its Subsidiaries’) breach of any such Backstop Designated Shared Contract. It is acknowledged that for the purposes of this Section 5.05 changes in volume metrics, as well as changes to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similarNewCo.”
Appears in 1 contract
Shared Contracts. Seller(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 Buyerthe Excluded Dublin Businesses, on the other hand, shalland 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 cause their respective controlled Affiliates tobe 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, cooperate 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 cause the Contracts set forth in Schedule 5.05(a) (collectively, the “Designated Shared Contracts”) to be replaced with separate contract rights and obligations (the “Replacement Contracts”) negotiate 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, 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) costs or fees required to be paid In the event that any third party under a Replacement Shared Contract does not agree to enter into a New Business Contract or Backstop Designated Partial Assignment and Release consistent with Section 5.8(a) the Parties shall until the expiration or termination date of the applicable Shared Contract Contract, cooperate with each other and, following good faith discussions between the Parties, seek to obtain or any structure mutually acceptable 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 for the applicable member of the Designated Shared Contracts prior to Company Group (or Buyer or its Affiliates) and the Closing applicable member of the Seller Group (or its Affiliates) receiving rights and for a period of one hundred eighty (180) days following the Closing. In addition, Seller shallbenefits, 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 bearing liabilities 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) daysobligations, to the extent permissible under Law and under the terms related to its respective business (provided that such arrangements shall not result in a breach or violation 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 AffiliatesSubsidiaries). 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 Affiliates shall not terminate or cancel 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 Designated third party under such 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 solely to the extent such Backstop Designated Shared Contracts are not separated related to the Business (or transitioned hereunder andapplicable portion thereof), for the avoidance of doubt, and Seller shall be under no obligation hereunder to (x) deliver and its Subsidiaries would promptly pay to Buyer the same pricing metrics in and its applicable Subsidiaries when received all monies received by them (net of any Designated applicable Taxes imposed on Seller and its Subsidiaries) from time to time under such Shared Contract in connection with obtaining any Replacement Contract in respect thereof solely to the extent Related to the Business (or providing an alternative arrangement with respect to a Backstop Designated Shared Contract or applicable portion thereof).
(yc) 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 Liabilities Liabilities, rights and benefits pursuant to, under or relating to a given Backstop Designated 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 Contract, such Liabilities Liabilities, rights and benefits shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contractany other Acquisition Document, be allocated from time to time between Seller and Buyer as follows:
(i) If a Liability is incurred, or if a right or benefit is obtained, exclusively in respect of the Retained SubsidiariesBusiness or exclusively in respect of the Excluded Dublin Businesses, on such Liability, right or benefit shall be allocated to Buyer or its applicable Subsidiary (in respect of the one handBusiness) or Seller or its applicable Subsidiary (in respect of the Excluded Dublin Businesses);
(ii) If a Liability, and Buyer and the Purchased Companiesright or benefit cannot be so allocated under clause (i) above, on the other handsuch Liability, right or benefit shall be allocated to Seller or Buyer, as the case may be, based on the relative proportions of total benefits benefit 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 ContractContract remaining as of the Closing Date, measured up to as of the date of the allocation, without duplication) by the Business or the Excluded Dublin Businesses (as applicable) under the relevant Shared Contract. Notwithstanding the foregoing, each of Seller and Buyer shall be responsible for any or all Liabilities to the Retained extent related to, resulting from, or arising out of (or its Subsidiary’s) direct or indirect breach of, or actions under, the relevant Shared Contract to which this Section 5.8 otherwise pertains.
(d) If Seller or any of its Subsidiaries, on the one hand, or Buyer and the Purchased Companiesor any of its Subsidiaries, on the other hand, receives any benefit or payment which under any Shared Contract was intended for the relevant Backstop Designated 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.
(e) 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. Notwithstanding , as the foregoingcase may be or (y) obtain any Regulatory Approvals necessary to enter into an acceptable alternative arrangement contemplated by Section 5.8(c); provided, each 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 solely responsible for any and all Liabilities to the extent arising out of or relating to considered in good faith by such Party; provided, further, that such Party’s (or its Subsidiaries’) good faith determination not to commence litigation shall not in and of itself constitute a breach of any such Backstop Designated Shared Contract. It is acknowledged that for the purposes of this Section 5.05 changes in volume metrics5.8(e).
(f) Notwithstanding anything to the contrary herein, as well as changes to reflect the needs Parties agree that the Contracts listed on Section 5.8(f) of the applicable Party, Seller Disclosure Schedule (collectively “Excluded Shared Contracts”) shall not be considered when determining whether contract rights and obligations deemed to be Acquired Assets or Shared Contracts hereunder.
(g) The provisions set forth on Section 5.8(g) of the Seller Disclosure Schedule are “substantially similarhereby incorporated into this Agreement.”
Appears in 1 contract
Shared Contracts. Seller, on the one hand, and Buyer, on the other hand, shall, (a) Trinity shall and shall cause their respective controlled its Affiliates to, cooperate and shall to use their reasonable best efforts to cause the Shared Contracts set forth in Schedule 5.05(a) 5.3 (collectively, the “Designated Key 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 exception of the Designated Key Shared Contracts that are substantially similar specifically denominated therein as being covered directly by Section 6.4(b) below, to those contract rights and obligations be replaced, prior to or on the Closing Date with two separate contracts, which shall (including as to pricing metricsx) utilized by Seller in the conduct of respectively, deal exclusively with the Business prior to (the Closing. Buyer “Business Replacement Contract”), and Seller shall each bear one-half all business other than the Business (1/2the “Other Replacement Contract”), and (y) of have substantially 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 same terms as the Key Shared Contracts pursuant being replaced. Stago shall and shall cause its Affiliates 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 Trinity with all reasonable assistance in effecting such separation of the Designated Key Shared Contracts prior to the Closing (with no obligation on the part of 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 for a period of one hundred eighty to approve the replacement contracts (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 such approval not to be unreasonably withheld or delayed).
(b) In the event that any such Key Shared Contract is replaced in accordance with a Replacement Contract that provides Buyer or any Purchased Company with contract rights and obligations subsection (including as to pricing metricsa) 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 above prior to the date hereofClosing Date, or such other terms as are reasonably requested by Buyer. 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 Buyer and Seller are Trinity is not able to effect the separation of separate a Designated Key Shared Contract in accordance with subsection (each a “Backstop Designated Shared Contract”)a) above at or prior to the Closing Date, such Backstop Designated the Key Shared Contract shall be automatically deemed set forth on to be an Excluded Contract if referred to as such in Schedule 5.05(b) on 5.3 and shall therefore remain with the Closing Date andSeller Group, until any such Backstop Designated Shared Contract is separated or otherwise replaced, but in no event longer than one hundred eighty (180) days, subject to the extent permissible under Law and under the terms relevant members 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 Group complying with Section 6.3(b) and against any and all Liabilities based upon, arising out of or relating to the interim arrangements contemplated by this clause (i6.3(d) with respect to such contracts, in which case the Backstop Designated Shared Contracts, except relevant Business Asset Purchaser shall hold the relevant Business Asset Seller harmless with respect to any obligations arising thereunder that relate to the extent any such Liability arises out Business.
(d) All of the gross negligence other Shared Contracts shall be novated, assigned or willful misconduct of Sellertransferred to the Purchasers, (iiaccording to the procedure set forth in Section 5.2(f) Buyer and above, provided that the relevant transferring Business Asset 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 relevant Business Asset Purchaser harmless with respect to any obligations arising under 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 given Shared Contract that is not a Designated Shared Contract or a Backstop Designated Shared Contract, as the case may be. With respect to Liabilities pursuant to, under or relating to a given Backstop Designated Shared Contract, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract, be allocated from time to time between Seller and the Retained Subsidiaries, on the one hand, and Buyer and the Purchased Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over any business other than the term of the applicable Backstop Designated Shared Contract, measured up to the date of the allocation, without duplication) by Seller and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased Companies, on the other hand, under the relevant Backstop Designated Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible for any and all Liabilities to the extent arising out of or relating to such Party’s (or its Subsidiaries’) breach of any such Backstop Designated Shared Contract. It is acknowledged that for the purposes of this Section 5.05 changes in volume metrics, as well as changes to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similarBusiness.”
Appears in 1 contract
Shared Contracts. Seller, on the one hand, Seller and Buyer, on the other hand, shall, and shall cause their respective controlled Affiliates to, cooperate and shall use their reasonable best efforts Purchaser acknowledge that Seller or its Subsidiaries are parties to cause the certain Contracts set forth in Schedule 5.05(a) (collectively, the “Designated Shared Contracts”) to be replaced assigned, transferred or conveyed in accordance with separate contract rights Section 2.4(b) that do not exclusively relate to the Business (each 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 obligations its Affiliates or (ii) is an Excluded Asset.
(i) With respect to the Shared Contracts listed or described on Section 2.11(c)(i) of the Seller Disclosure Schedules (the “Replacement Section 2.11(c)(i) Shared Contracts”” XE "Section 2.11(c)(i) that provide Buyer or any Purchased Company with contract rights Shared Contracts” \t “2.11(c)(i)” ), Seller 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 Purchaser shall cooperate and provide with each other with and use their commercially reasonable assistance in effecting such separation of the Designated Shared Contracts efforts prior to the Closing and for a period of one hundred eighty (180in accordance with the terms hereof) days following until the Closing. In addition, Seller shall, and shall cause its controlled Affiliates Applicable End Date to, for a period except as otherwise provided in Section 2.11(c)(i) 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 ContractDisclosure Schedules, (i) Seller shall continue to perform divide, modify or replicate, in whole or in part (and in 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 case of Seller, (ii) Buyer to assist Purchaser in negotiating and Seller shall hold in trust entering into arrangements for the benefit of the other Party, and shall promptly forward to Business with the other Party, any monies or other benefits received pursuant counterparty to such Backstop Designated Shared Contract relating to derive substantially the respective businesses of rights and benefits under such Shared Contract, taking into account differences between the other Party (or its respective Affiliates) Business 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 Retained Business following the Closing, (x) Seller the respective rights, obligations and its Affiliates shall renew each Designated Shared Contract upon liabilities relating to the expiration or termination thereof if Buyer has not entered into a Replacement Contract Business under and in respect of such Designated Shared Contract), unless Buyer confirms and obtain each Approval required in connection therewith (a “New Contract” XE "New Contract” \t “2.11(c)(i)” ), or (ii) to Seller the extent the action contemplated in writing that Buyer does the foregoing clause (i) is not need reasonably practicable, novate the respective rights, obligations and liabilities relating to receive the benefit Business under and in respect of such Designated 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 (ythe “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 extent any such Designated Shared Contract contains an operation or conduct of the Business (the “evergreenBusiness Portion” provision that automatically renews such Designated Shared Contract unless terminated or cancelled by Seller or its AffiliatesXE "Business Portion” \t “2.11(c)(i)” ) (so that, subsequent to the Split Time, Seller and its Affiliates shall not terminate have no post-Split Time rights or cancel such Designated Shared Contract if Buyer has not entered into a Replacement Contract in post-Split Time obligations and liabilities with respect to the Business Portion 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 other than with respect to a Backstop Designated 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) (ya “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” 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 Date to separate or transitionuntil the Applicable End Date, or provide Buyer Seller and Purchaser shall cooperate 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 Liabilities pursuant each other and use their commercially reasonable efforts to, under or relating to a given Backstop Designated Shared Contract, such Liabilities shall, unless except as otherwise allocated pursuant to this Agreement or a Replacement Contract, be allocated from time to time between Seller and the Retained Subsidiaries, on the one hand, and Buyer and the Purchased Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term provided in Section 2.11(c)(ii) of the Seller Disclosure Schedules, Split such Shared Contracts or obtain an applicable Backstop Designated Shared New Contract, measured up to the date of the allocation, without duplication) by Seller and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased Companies, on the other hand, under the relevant Backstop Designated Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible for any and all Liabilities to the extent arising out of or relating to such Party’s (or its Subsidiaries’) breach of any such Backstop Designated Shared Contract. It is acknowledged that for the purposes of this Section 5.05 changes in volume metrics, as well as changes to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similar.”
Appears in 1 contract
Sources: Asset Purchase Agreement (PTC Inc.)
Shared Contracts. (a) Except as set forth on Section 5.6(a) of the Seller Disclosure Schedule, as promptly as 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) a separate Contract related exclusively to the TMA Business on terms and conditions consistent in all material respects with the terms and conditions of such Shared Contract that apply to the TMA Business (unless otherwise agreed in writing by Buyer), which separate Contract, subject to Section 5.5, shall be transferred to Buyer with effect as of or as promptly as practicable after the Closing Date (a “Buyer Split Contract”) and (ii) a 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 (unless otherwise agreed in writing by Seller), which shall be retained by Seller (a “Seller Split Contract”); provided that in the event that any Shared Contract is eligible for renewal after the Closing, 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 jointly approach the applicable contractual counterparty to each Shared Contract to 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 5.6(a)).
(b) Each 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, 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) (collectively, 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 Liabilities pursuant to, under or relating to a given Backstop Designated Shared Contract, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract, be allocated from time to time between Seller and the Retained Subsidiaries, on the one hand, and Buyer and the Purchased Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term of the applicable Backstop Designated Shared Contract, measured up to the date of the allocation, without duplication) by Seller and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased CompaniesGroup, on the other hand, under each Shared Contract in accordance with the portion of such Shared Contract that relates to the TMA 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) From and after the Closing, if, and as long as, any split of any Shared Contract cannot be realized:
(i) Seller and its Subsidiaries shall (A) use commercially reasonable efforts to provide Buyer with the economic and operational equivalent of the assignment and transfer of such Shared Contract to Buyer as of the Closing with respect to the TMA Business and the Transferred Assets; (B) make available to Buyer a correct and complete copy (including all amendments and modifications thereto) of the relevant Backstop Designated portions of such Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible for any and all Liabilities Contract to the extent arising out of or relating related to the TMA Business; (C) cooperate with Buyer, at Buyer’s expense, to enforce any rights available against any other party to such Party’s Shared Contract with respect to the TMA Business, and (D) not amend, supplement, extend, renew or otherwise modify in any material respects such Shared Contract in any manner adverse to Buyer with respect to the TMA Business unless (x) Buyer gives its Subsidiaries’prior written consent or (y) breach of any Buyer is first released from all Liabilities under such Backstop Designated Shared Contract. It is acknowledged that for ; and
(ii) Buyer agrees to provide to Seller and its Subsidiaries such maintenance, support, training or other services, products or payments as may be required under the purposes terms and conditions of this Section 5.05 changes in volume metrics, as well as changes such Shared Contract with respect to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similarTMA Business.”
Appears in 1 contract
Shared Contracts. Seller(a) Separation of Certain Shared Contracts for Benefit of Purchaser. Prior to the Closing, on the one hand, Sellers and Buyer, on the other hand, shall, and shall cause their respective controlled Affiliates to, cooperate and Purchaser shall use their commercially reasonable best efforts to cause work together (and, if necessary and desirable, to work with the Contracts set forth in Schedule 5.05(a) (collectively, third parties to the “Designated Separation Shared Contracts”) in an effort to be replaced with separate contract (i) divide, modify and/or replicate (in whole or in part) the respective rights and obligations under and in respect of the Separation Shared Contracts and (ii) if reasonably feasible, novate the respective rights and obligations under and in respect of the Separation Shared Contracts, such that, effective as of the Closing, (A) 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 “Replacement ContractsBusiness Portion”) 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 so that, subsequent to the Closing. Buyer and Seller , Sellers shall each bear one-half (1/2) have no rights or obligations with respect to the Business Portion of the costs Separation Shared Contract, 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 B) the applicable 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 is the beneficiary of the rights and is responsible for all ongoing (i.e., going forward, including payments due at the time obligations related to that portion 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 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 any alternative arrangements entered into pursuant obligations with respect to this Section 5.05. Buyer and Seller shall cooperate and provide each other with reasonable assistance in effecting such separation the Non-Business Portion of the Designated Separation Shared Contract. If the applicable parties are not able to enter into an arrangement to formally divide, modify and/or replicate one or more Separation Shared Contracts prior to the Closing and for a period of one hundred eighty (180) days following as contemplated by the Closing. In additionprevious sentence, 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, then (i) Seller Purchaser shall continue be entitled to perform the obligations under benefits of the Business Portion of any such Backstop Designated Separation 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 accruing on 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 the extent (and only to the extent) that Sellers may provide Buyer with any rights or such benefits under, any (A) without violating the terms of such Separation Shared Contract that is not a Designated and (B) without incurring any 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 applicable Seller to be performed after the Closing under the Business Portion of such Separation Shared Contract as in effect on the Closing Date until the earliest of (i) such time as separate Contracts for such goods or a Backstop Designated Shared Contract, as the case may be. With respect to Liabilities pursuant to, under or relating to a given Backstop Designated Shared Contract, services have been agreed between such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract, be allocated from time to time between Seller and the Retained Subsidiariesother party to such Contracts, on (ii) the one handelection by Seller to terminate such arrangement, (iii) the termination of such Separation Shared Contract and Buyer and the Purchased Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term of the applicable Backstop Designated Shared Contract, measured up to iv) the date of which is 12 months after the allocation, without duplication) by Seller and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased Companies, on the other hand, under the relevant Backstop Designated Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible for any and all Liabilities to the extent arising out of or relating to such Party’s (or its Subsidiaries’) breach of any such Backstop Designated Shared Contract. It is acknowledged that for the purposes of this Section 5.05 changes in volume metrics, as well as changes to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similarClosing Date.”
Appears in 1 contract
Sources: Asset Purchase Agreement
Shared Contracts. Seller(a) Within ten (10) days after the execution of this Agreement, on Allscripts Healthcare shall provide Buyer with a list indicating which of the one handBusiness Shared Contracts may be split and assigned in part to Buyer or replicated for the benefit of Buyer pursuant to its terms, and Buyerwithout the consent of the counterparty thereto or other conditions, on including the payment of a transfer or 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) fee (collectively, the “Designated Assignable 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 Each Assignable Shared Contract shall thereafter 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 of 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 split 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) replication with respect to the Backstop Designated portion of such Non-Assignable Shared Contracts, except Contract that relates to the extent any such Liability arises out of the gross negligence EPSi Business) to be an Assigned Contract hereunder and Sellers shall split and partially assign (or willful misconduct of Sellercause to be split and partially assigned) to Buyer, (ii) Buyer and Seller shall hold in trust or have or cause to be replicated, for the benefit of Buyer as of the other Party, and shall promptly forward Closing Date such Contract in accordance with its terms.
(b) With respect to the other Party, any monies or other benefits received pursuant to such Backstop Designated each Business Shared Contract relating to that is not an Assignable Shared Contract (the respective businesses of the other “Non-Assignable Shared Contracts”), each Party (or its respective Affiliates) and (iii) Buyer and Seller shall use commercially reasonable efforts to institute alternative arrangements intended cause the counterparty to put the Parties in a substantially similar economic position as if each such Backstop Designated Non-Assignable Shared Contract were separated into Replacement Contracts in accordance with this Section 5.05; provided that, notwithstanding to consent to the foregoing provisions split and partial assignment or replication of this paragraph, for a period of one hundred eighty (180) days following the Closing, (x) Seller and its Affiliates shall renew each Designated such Non-Assignable 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 portion of such Non-Assignable Shared Contract that is not relates to the EPSi Business), or to otherwise enter into a Designated 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 a Backstop Designated Shared Contract, as the case may be. With respect to Liabilities pursuant to, under or relating to a given Backstop Designated Shared Contract, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract, replication shall thereafter be allocated from time to time between Seller and the Retained Subsidiaries, on the one hand, and Buyer and the Purchased Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received deemed (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, measured up split or replication with respect to the date 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, or have or cause to be replicated, as of the allocation, without duplication) by Seller and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased Companies, on the other hand, under the relevant Backstop Designated Shared ContractClosing Date such Contract in accordance with its terms. Notwithstanding the foregoing, Sellers and their Affiliates shall not be required to split and partially assign to Buyer or have replicated any of the Non-Assignable Shared Contracts for which consent has not been obtained. To the extent any counterparty under a Non-Assignable Shared Contract requires the payment of a transfer or other fee for the split and partial assignment or replication of such Shared Contract, Allscripts Healthcare and Buyer shall each Party 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 be solely responsible for any 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 all Liabilities (B) Buyer agrees to, or to cause its Affiliates to, perform under such Non-Assignable Shared Contract to the extent arising out of or relating related to such Party’s (or the EPSi Business and to the extent required to be performed after the Closing, in each case in accordance with its Subsidiaries’) breach of any such Backstop Designated Shared Contractterms. It is acknowledged that for For clarity, the purposes of this Section 5.05 changes obligation set forth in volume metrics, as well as changes to reflect the needs of the applicable Party, immediately preceding sentence shall not be considered subject to any deductible or cap, notwithstanding the provisions of Article X.
(c) As to any Non-Assignable Shared Contract for which the Parties have not received consent, the Parties agree to cooperate in good faith to take such actions as are reasonably necessary to avoid any breach or violation by a Party as a result of any failure to obtain any required consent. Until any such consent or new Contract is obtained, such Non-Assignable Shared Contract shall be subject to Section 7.8(b). If and when determining whether contract rights such consents or approvals are obtained or such other required actions have been taken, the split and obligations are “substantially similarpartial assignment, or replication, of such Non-Assignable Shared Contract will be effected in accordance with Section 7.13(b).”
Appears in 1 contract
Sources: Asset Purchase Agreement (Allscripts Healthcare Solutions, Inc.)
Shared Contracts. Seller(a) Following the date hereof, the Parties shall use reasonable efforts to enter into or to grant, and to cause each third party counterparty to a 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 Contract immediately prior to the Closing (such portion of the claims, rights benefits, obligations and economic burdens that are related to the Business, 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 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 consent, 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 BuyerSeller and the other Selling Entities, on the other hand, shallwould, where commercially reasonable and shall cause their respective controlled Affiliates toin compliance with applicable Law, cooperate and shall use their reasonable best efforts to cause obtain the Contracts set forth in Schedule 5.05(a) (collectivelyappropriate claims, the “Designated Shared Contracts”) to be replaced with separate contract rights and benefits and assume and perform the related obligations (and bear 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 related economic burdens of the Business prior 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 Closing. Buyer benefit (and Seller shall each bear one-half (1/2at the expense) of Purchaser or any of its Subsidiaries, or Seller or any of the costs and expenses associated with first obtaining and/or entering into any Replacement Contract other Selling Entities (e.g., transfer fees, deposits, etc.); provided, however, as applicable) 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 is an intended beneficiary thereof pursuant to this Section 5.05; provided6.14 and (c) pay, further, that Buyer shall reimburse and/or otherwise be responsible for the Business Portion of all ongoing 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 (i.e.based on the relative proportions of such license fee attributable to the Business Portion and Non-Business Portion of such Specified Shared Contract). 55
(b) Notwithstanding anything else set forth in this Section 6.14, going forward, including payments due at the time neither Party nor any of first obtaining and/or entering into any Replacement Contract intended to cover Buyer’s and its Subsidiaries’ going forward costsAffiliates shall (i) costs or fees be required to be paid under a Replacement Contract or Backstop Designated Shared Contract or take any alternative arrangements entered into action pursuant to this Section 5.05. Buyer and Seller shall cooperate and provide each other with reasonable assistance 6.14(a) that would (x) result in effecting a violation of any obligation which 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 Party or its Affiliates has to be replaced with any third party, (y) constitute a Replacement Contract that provides Buyer breach or violation of any Purchased Company with contract rights and obligations applicable Law (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 hereofwhether by operation of law or otherwise), or such other terms as are reasonably requested by Buyer. If Buyer (z) adversely affect the rights of Purchaser and Seller are not able to effect its Affiliates thereunder (unless the separation prior written consent of a Designated Shared Contract (each a “Backstop Designated Shared Contract”Purchaser has been obtained), 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 be obligated 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 pay (or its respective Affiliatescause to be paid) 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 fees, costs 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 expenses in connection with obtaining any Replacement Contract in respect thereof their obligations under Section 6.14(a) (other than immaterial administrative or providing an alternative arrangement with respect to a Backstop Designated Shared Contract legal costs and expenses) or (y) after the Closing Date any consideration to separate any third party who is requested to enter into or transitionto grant any such new agreements, bifurcations or consents, or provide Buyer (iii) be required to take any action in connection with any rights or benefits under, any Shared Contract that is not a Designated Shared Contract or a Backstop Designated Specified Shared Contract, as the case may be. With respect to Liabilities pursuant to, under or relating to a given Backstop Designated Shared Contract, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract, be allocated from time to time between Seller and the Retained Subsidiaries, on the one hand, and Buyer and the Purchased Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term of the applicable Backstop Designated Shared Contract, measured up to the date of the allocation, without duplication) by Seller and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased Companies, on the other hand, under the relevant Backstop Designated Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible for any and all Liabilities to the extent arising out of or relating to such Party’s (or its Subsidiaries’) breach of any such Backstop Designated Shared Contract. It is acknowledged that for the purposes of this Section 5.05 changes in volume metrics, as well as changes to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similar.”
Appears in 1 contract
Shared Contracts. Seller, on the one hand, and Buyer, on the other hand, shall, and shall cause their respective controlled Affiliates to, cooperate and (a) Schedule 1.7(a) sets forth a list of all Shared Contracts.
(b) Seller shall use their its commercially reasonable best efforts to cause the Contracts set forth in Schedule 5.05(a) (collectively, 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 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 Coca-Cola Foodservice or its Affiliates respect to be replaced with which Buyer desires to enter into a Replacement Contract that provides Buyer or any Purchased Company with contract rights and obligations (including as A) in writing to pricing metricsSeller within thirty (30) 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 days after the date hereof, or such other terms as are reasonably requested by Buyer. If Buyer and Seller are not able to effect hereof (the separation of a Designated “Shared Contract Election Date”) or (B) on Schedule 3.3(b)(v) (each a an “Backstop Designated 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 its Subsidiaries of such Backstop Designated portions of such Required Shared Contract shall be automatically deemed set forth on Schedule 5.05(b) on the Closing Date and, until any such Backstop Designated or Identified Shared Contract is separated that are exclusive to the Business (each such assignment, a “Partial Shared Contract Assignment”), or to otherwise enter into a Replacement Contract for such Required Shared Contract or Identified Shared Contract, in each case as of the Closing, and Buyer shall use its commercially reasonable efforts to cooperate with Seller with regard to the foregoing.
(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 replaced, but requires in no event longer than one hundred eighty (180) days, response to a notice or consent request regarding this Agreement the extent permissible under Law and under the terms payment of such Backstop Designated Shared Contracta Transfer Fee, (i) Seller shall continue to perform be responsible for the obligations under payment of any such Backstop Designated Transfer Fee for (A) any Partial Shared Contract at Assignment and (B) any Replacement Contract for a Required Shared Contract and (ii) the sole cost and expense Parties shall share equally in the payment 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 any Transfer Fee for any out-of-pocket costs and expenses or payments of obligations made by Seller under such Backstop Designated Replacement Contract for an Identified Shared Contract (which invoices shall be delivered by Seller that, as of the date of this Agreement, does not apply solely 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))the Business, and Buyer shall indemnify and hold the Seller Indemnitees harmless from and against any and all Liabilities based upon, arising out terms of or relating to the interim arrangements contemplated by 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) with respect to the Backstop Designated Partial Shared Contracts, except to the extent any such Liability arises out of the gross negligence or willful misconduct of Seller, 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 waived by Buyer.
(d) With respect to each Required Shared Contract and each Identified Shared Contract, until the earlier of (i) the date that is twelve (12) months after the Closing Date and (ii) the date such Required Shared Contract or Identified Shared Contract is acquired by Buyer and or its Subsidiary through a Partial Shared Contract Assignment or a Replacement Contract, Seller shall hold in trust for the benefit of the other Partynot, and shall promptly forward 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 other Party, any monies or other benefits received pursuant to terms of such Backstop Designated Required Shared Contract relating or Identified Shared Contract in the event of a material breach by any counterparty thereto. 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 Shared Contracts for which consent has not been obtained.
(e) With respect to each Required Shared Contract or Identified Shared Contract for which the arrangements described in Section 1.7(b) could not be entered into prior to the respective businesses of the other Party (or Closing Date, Seller agrees to continue to use 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 six (1806) days following the Closing, (x) Seller months from 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 cause the counterparty to each such Required Shared Contract or Identified Shared Contract to consent to a Backstop Designated 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, as 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 case may beobligations and benefits of any such Required Shared Contract or Identified Shared Contract with respect to the Business, including subcontracting, licensing, sublicensing, leasing or subleasing to Buyer and its Subsidiaries any or all of Seller’s and its Subsidiaries’ rights and obligations with respect to such Required Shared Contract or Identified Shared Contract with respect to the Business. With respect to Liabilities pursuant to, under that portion of the Required Shared Contract or relating to a given Backstop Designated Identified Shared Contract, such Liabilities shall, unless otherwise allocated Contract that Buyer has notified Seller pursuant to this Agreement or a Replacement Contractthe first sentence of Section 1.7(b) that it desires to assume in part, be allocated from time to time between Seller and Buyer shall (i) bear the Retained Subsidiaries, on the one hand, and Buyer and the Purchased Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term sole responsibility for completion of the applicable Backstop Designated Shared Contractwork or provision of goods and services, measured up (ii) be solely entitled to the date of the allocationall benefits thereof, without duplicationeconomic or otherwise, (iii) by Seller and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased Companies, on the other hand, under the relevant Backstop Designated Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible for any warranty or breach thereof, and all Liabilities to any repurchase, indemnity and service obligations thereof, and (iv) promptly reimburse the extent arising out reasonable costs and expenses of Seller and its Affiliates related thereto. If and when such consents or relating to approvals are obtained or such Party’s (other required actions have been taken, the partial assignment of such Required Shared Contract or its Subsidiaries’) breach of any such Backstop Designated Identified Shared Contract. It is acknowledged that for Contract will be effected in accordance with the purposes terms of this Section 5.05 changes in volume metrics, as well as changes to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similarAgreement.”
Appears in 1 contract
Sources: Asset Purchase Agreement (Integrated Device Technology Inc)
Shared Contracts. Seller(a) 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 Contracts”); provided that in no event shall the Shared Contracts include any Contract that (A) is a master terms agreement, or 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 Contract 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 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 any other Transaction Document, for a period of twelve (12) months after the Closing Date, 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 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 rights and obligations under such Shared Contract to the extent primarily related to the Non-Fluids Businesses, on the one hand, and BuyerPurchaser (or a Fluids Entity) will assume all of the rights and obligations under such Shared Contract to the extent primarily related to the Fluids Business, on the other hand, shall, . From 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) (collectively, 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 after 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, (i1) Seller Purchaser (or a Fluids Entity) shall continue to perform the obligations under such Backstop Designated Shared Contract at the sole cost and expense of Buyer (i.e. Buyer shall promptlyreimburse, 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 harmless Seller Indemnitees harmless and its Affiliates against all Losses arising 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 portion of any Shared Contract apportioned to the Backstop Designated Shared Contracts, except to Fluids Business and (2) Purchaser and its Affiliates shall not extend the extent term or otherwise amend the terms of 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 manner that would adversely affect Seller or any of its Non-Fluids Subsidiaries without prior written consent of Seller (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 its sole discretion). From and after the Closing, (x1) 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 its Affiliates shall renew each Designated not extend the term or otherwise amend the terms of any Shared Contract upon in a manner that would adversely affect Purchaser or any of its Non-Fluids Subsidiaries without prior written consent of Purchaser (in its sole discretion).
(b) Notwithstanding anything in this Agreement to the expiration or termination thereof if Buyer has not entered into contrary, without limiting the obligations of Seller under the Transition Services Agreement, any apportionment to Purchaser of any Shared Contract that shall require the consent of a Replacement Contract in respect of third party shall be made subject to such Designated Shared Contract, unless Buyer confirms to Seller in writing that Buyer does not need to receive the benefit of such Designated Shared Contractconsent being obtained, 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 Subsidiaries shall not terminate be required to agree to any arrangement 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 take 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 action in connection with obtaining the matters contemplated by Section 5.12(a) that would (i) constitute a breach or other contravention of the express terms of any Replacement Contract in respect thereof or providing an alternative arrangement with respect to a Backstop Designated Shared Contract or (yii) after be reasonably likely to subject Seller or the Closing Date Non-Fluids Subsidiary party thereto, to separate civil or transitioncriminal liability, or provide Buyer with (iii) require Seller or the Non-Fluids Subsidiary party thereto to pay or commit to pay any rights amount, or benefits undergrant 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 Shared Contract that is not a Designated Shared Contract or a Backstop Designated Shared Contract, as the case may be. With respect to Liabilities pursuant guarantees) to, under or relating to a given Backstop Designated Shared Contract, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract, be allocated from time to time between Seller and the Retained Subsidiaries, on the one hand, and Buyer and the Purchased Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term of the applicable Backstop Designated Shared Contract, measured up to the date of the allocation, without duplication) by Seller and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased Companies, on the other hand, under the relevant Backstop Designated Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible for commence any and all Liabilities to the extent arising out of or relating to such Party’s (or its Subsidiaries’) breach of proceeding against any such Backstop Designated Shared Contract. It is acknowledged that for the purposes of this Section 5.05 changes in volume metrics, as well as changes to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similarPerson.”
Appears in 1 contract
Shared Contracts. Seller(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 Contract 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 the applicable Shared Contract, in each case as of the Closing. Each such Non-Assignable Shared Contract for which the parties have received consent to the partial assignment shall thereafter be deemed to be a Transferred Contract hereunder to the extent of the assigned portion and the Seller party to such contract shall, or shall cause one handor more of its Subsidiaries, and Buyeras applicable, on to, partially assign to Acquisition Sub as of the other hand, shallClosing such Contract in accordance with its terms. The Sellers shall not, and shall cause their respective controlled Affiliates not permit any of its Subsidiaries to, cooperate 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 counterparty or other conditions of force majeure; provided, however, a Seller or a Subsidiary shall notify Buyer in writing at least thirty (30) days prior to any such expiration or termination and the Parties will reasonably and in good faith discuss what course of action best accommodates the interests of the Parties with respect to such contracts in light of the expiration or proposed termination, including the interest of Buyer in continuing to operate the Business, provided that during such period the Sellers shall not permit such Contract to lapse or terminate absent such agreement). Notwithstanding the foregoing, the Sellers shall not be required to partially assign to Acquisition Sub at Closing any of the Non-Assignable Shared Contracts for which consent has not been obtained.
(c) With respect to each Non-Assignable Shared Contract for which the arrangements described in Section 2.7(b) were not entered into prior to the Closing Date, the Sellers agree to continue to use their commercially reasonable best efforts from and after the Closing Date to cause the Contracts set forth counterparty to each such Non-Assignable Shared Contract to consent to the partial assignment of such Non-Assignable Shared Contract to Acquisition Sub, or to otherwise enter into a new Contract with Acquisition Sub or one or more of its Subsidiaries on substantially the same terms as exist under the applicable Shared Contract. Until any such consent or new Contract is obtained the Sellers and Buyer will use their respective commercially reasonable efforts to cooperate, in Schedule 5.05(a) (collectivelyany lawful and reasonable arrangement, to the “Designated extent such cooperation would not result in a breach of the terms of such Non-Assignable Shared Contracts”) 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 be replaced with separate contract 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 “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 sole responsibility for completion of the Business prior work or provision of goods and services, (ii) bear all Taxes with respect thereto or arising therefrom to the Closing. Buyer extent attributable to any period or portion thereof beginning after the Closing Date, (iii) be solely entitled to all benefits thereof, economic or otherwise, (iv) be solely responsible for any warranty or breach thereof, any repurchase, indemnity and Seller shall each bear one-half service obligations thereof, and (1/2v) of promptly reimburse the reasonable costs and expenses associated with first obtaining and/or entering into any Replacement Contract (e.g., transfer fees, deposits, etc.)of the Sellers and their Affiliates related thereto; provided, however, that neither Buyer nor Seller Acquisition Sub’s obligations under clauses (i) through (v) shall be required limited to incur any further Liabilities or provide any financial accommodation in connection therewith or in connection with its obligations that portion of such Non-Assignable Shared Contract that Buyer has notified the Sellers pursuant to Backstop Designated Shared Contracts pursuant to this the first sentence of 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 metrics2.7(b) that it desires to assume in part. If and when such consents or approvals 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, obtained or such other terms as are reasonably requested by Buyer. If Buyer and Seller are not able to effect required actions have been taken, the separation partial assignment of a Designated such Non-Assignable Shared Contract (each a “Backstop Designated Shared Contract”), such Backstop Designated Shared Contract shall will 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 effected in no event longer than one hundred eighty (180) days, to the extent permissible under Law and under accordance with 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 Liabilities pursuant to, under or relating to a given Backstop Designated Shared Contract, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract, be allocated from time to time between Seller and the Retained Subsidiaries, on the one hand, and Buyer and the Purchased Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term of the applicable Backstop Designated Shared Contract, measured up to the date of the allocation, without duplication) by Seller and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased Companies, on the other hand, under the relevant Backstop Designated Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible for any and all Liabilities to the extent arising out of or relating to such Party’s (or its Subsidiaries’) breach of any such Backstop Designated Shared Contract. It is acknowledged that for the purposes of this Section 5.05 changes in volume metrics, as well as changes to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similarAgreement.”
Appears in 1 contract
Shared Contracts. Seller(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 Buyerthe Excluded Dublin Businesses, on the other hand, shalland 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 cause their respective controlled Affiliates tobe 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, cooperate 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 best efforts to cause negotiate that Dublin and its Subsidiaries, and Buyer and its Affiliates (including the Contracts set forth in Schedule 5.05(aTransferred 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) (collectivelyIn 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 “Designated Parties shall until the expiration or termination date of the applicable Shared Contracts”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) to be replaced with separate contract 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 “Replacement Contracts”) that provide Buyer or any Purchased Company with contract rights and obligations (including as economic burdens associated with, such Shared Contract solely to pricing metrics) under the Designated Shared Contracts that are substantially similar extent related to those contract rights and obligations (including as to pricing metrics) utilized by Seller in the conduct of the Business prior to (or applicable portion thereof) and under which Dublin and its Subsidiaries would, upon the Closing. request of Buyer, enforce for the benefit (and at the expense) of Buyer and Seller shall each bear one-half (1/2) its Subsidiaries any and all 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 BuyerDublin’s and its Subsidiaries’ going forward costs) costs or fees required to be paid rights against such third party under a Replacement Contract or Backstop Designated such 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, solely to the extent permissible under Law and under related to the terms of such Backstop Designated Shared Contract, Business (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)applicable portion thereof), and Dublin and its Subsidiaries would promptly pay to Buyer shall indemnify and hold the Seller Indemnitees harmless its applicable Subsidiaries when received all monies received by them (net of any applicable Taxes imposed on Dublin and its Subsidiaries) from and against any and all Liabilities based upon, arising out of or relating time to the interim arrangements contemplated by this clause (i) with respect to the Backstop Designated time under such Shared Contracts, except Contract solely 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 related 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 Business (or its respective Affiliatesapplicable portion thereof).
(c) 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 Liabilities Liabilities, rights and benefits pursuant to, under or relating to a given Backstop Designated 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 Contract, such Liabilities Liabilities, rights and benefits shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contractany other Acquisition Document, be allocated from time to time between Seller and the Retained Subsidiaries, on the one hand, Dublin and Buyer and as follows:
(i) If a Liability is incurred, or if a right or benefit is obtained, exclusively in respect of the Purchased CompaniesBusiness or exclusively in respect of the Excluded Dublin Businesses, on such Liability, right or benefit shall be allocated to Buyer or its applicable Subsidiary (including the other handTransferred Subsidiaries) (in respect of the Business) or Dublin or its applicable Subsidiary (in respect of the Excluded Dublin Businesses);
(ii) If a Liability, right or benefit cannot be so allocated under clause (i) above, such Liability, right or benefit shall be allocated to Dublin or Buyer or one or more of their respective Subsidiaries, as the case may be, based on the relative proportions of total benefits benefit 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 ContractContract remaining as of the Closing Date, measured up to as of the date of the allocation, without duplication) by Seller the Business or the Excluded Dublin Businesses (as applicable) under the relevant Shared Contract. Notwithstanding the foregoing, each of Dublin and Buyer shall be responsible for any or all Liabilities to the extent related to, resulting from, or arising out of its (or its Subsidiaries’, including, with respect to Buyer and the Retained Transferred Subsidiaries) direct or indirect breach of, or actions under, the relevant Shared Contract to which this Section 5.10 otherwise pertains.
(d) If Dublin or any of its Subsidiaries, on the one hand, or Buyer and or any of its Subsidiaries (including the Purchased CompaniesTransferred Subsidiaries), on the other hand, receives any benefit or payment which under any Shared Contract was intended for the relevant Backstop Designated other, Dublin and Buyer will use their respective commercially reasonable efforts to, and to cause their respective Subsidiaries to (including, with respect to Buyer, the Transferred Subsidiaries), deliver such benefit or payment to the other Party.
(e) 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. Notwithstanding , as the foregoingcase may be, each 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 solely responsible for any and all Liabilities to the extent arising out of or relating to considered in good faith by such Party; provided, further, that such Party’s (or its Subsidiaries’) good faith determination not to commence litigation shall not in and of itself constitute a breach of any such Backstop Designated Shared Contract. It is acknowledged that for the purposes of this Section 5.05 changes in volume metrics5.10(e).
(f) Notwithstanding anything to the contrary herein, as well as changes to reflect the needs Parties agree that the Contracts listed on Section 5.10(f) of the applicable Party, Dublin Disclosure Schedule (collectively “Excluded Shared Contracts”) shall not be considered when determining whether contract rights and obligations deemed to be Acquired Assets or Shared Contracts hereunder.
(g) The provisions set forth on Section 5.10(g) of the Dublin Disclosure Schedule are “substantially similarhereby incorporated into this Agreement.”
Appears in 1 contract
Shared Contracts. SellerEach of Parent and Purchaser will, on in cooperation with the one handother, and Buyer, on the other hand, shall, and shall cause their respective controlled Affiliates to, cooperate and shall use their its reasonable best efforts both before and after the Closing to cause effect the Contracts set forth in Schedule 5.05(a) (collectively, assignment and novation of the “Designated Shared Contracts”) Contract Rights and the Shared Contract Obligations 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) Transferred Companies under the Designated Shared Contracts so that are substantially similar the Transferred Companies shall be solely responsible for such Shared Contract Rights and Shared Contract Obligations from and after the Closing Date by, among other things, amending the Shared Contracts to those contract rights separately assign and obligations (including as to pricing metrics) utilized by Seller in novate the conduct of Shared Contract Rights and the Business prior Shared Contract Obligations 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.)Transferred Companies; provided, however, that neither Buyer nor Seller that, none of the Transferred Companies, Parent or Parent Group members shall be required to incur pay money to any further Liabilities third party, commence any litigation or provide offer or grant any accommodation (financial accommodation in connection therewith or otherwise) to any third party in connection with its obligations pursuant such efforts. Notwithstanding the foregoing, this Section 6.5(c)(i) shall not constitute an agreement to Backstop Designated amend any Shared Contracts pursuant or to this Section 5.05; providedtransfer, furtherassign, novate or convey any Shared Contract Rights and the Shared Contract Obligations to the extent that Buyer such Shared Contracts, Shared Contract Rights and the Shared Contract Obligations are not amendable, assignable or transferable without the consent of any Person, other than the Transferred Companies, Parent or any Parent Group member. Unless otherwise agreed by Purchaser and Parent, such amendments and new contracts shall be responsible for all ongoing (i.e., going forward, including payments due at on pricing terms substantially the time of first obtaining and/or entering into any Replacement Contract intended same as the terms applicable to cover Buyer’s and its Subsidiaries’ going forward costs) costs or fees required to be paid the Business under a Replacement Contract or Backstop Designated the associated Shared Contract or any alternative arrangements entered into pursuant to this Section 5.05. Buyer and Seller shall cooperate otherwise be on terms and provide each other with reasonable assistance in effecting such separation of the Designated Shared Contracts prior conditions not materially less favorable to the Closing and for a period of one hundred eighty (180) days Transferred Companies, or following the Closing. In addition, Seller shallthe Transferred Companies, Purchaser, or Parent, than the terms 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 conditions applicable to the date hereof, or such other terms as are reasonably requested by Buyer. If Buyer and Seller are not able to effect Business under the separation of a Designated Shared Contract (each a “Backstop Designated associated Shared Contract”). From and after the Closing, 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 Purchaser shall indemnify and hold Parent and the Seller Indemnitees Parent Group harmless from and against any and all Liabilities based uponpost-Closing liabilities and losses, whether or not arising out of or relating to the interim arrangements contemplated by this clause (i) with respect to the Backstop Designated Shared Contractsfrom a third-party claim, 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 Liabilities pursuant to, under or relating to a given Backstop Designated Shared Contract, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract, be allocated from time to time between Seller and the Retained Subsidiaries, on the one hand, and Buyer and the Purchased Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term of the applicable Backstop Designated Shared Contract, measured up to the date of the allocation, without duplication) by Seller and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased Companies, on the other hand, under the relevant Backstop Designated Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible for any and all Liabilities to the extent arising out of or relating to such Party’s (the Shared Contract Rights and Shared Contract Obligations. If any Shared Contract Rights and Shared Contract Obligations are not assigned to the Transferred Companies prior to or its Subsidiaries’) breach of any such Backstop Designated Shared Contract. It is acknowledged that for on the purposes of this Section 5.05 changes Closing Date, unless the Parties otherwise agree in volume metricswriting, as well as changes to reflect during the needs remaining term of the applicable PartyShared Contract, not to exceed twelve (12) months, the Parties shall not be considered when determining whether contract rights use their respective reasonable best efforts to allow the Transferred Companies to the extent permitted by applicable Law and obligations are “substantially similarto the extent reasonably within the contractual or other ability or control of Parent and the Parent Group, on the one hand, and the Transferred Companies or their Affiliates, on the other hand, to provide or receive such Shared Contract Rights, respectively, subject to the Shared Contract Obligations.”
Appears in 1 contract
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(a) (collectively, 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 Contractual Liabilities pursuant to, under or directly relating to a given Backstop Designated Shared Contract, such 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 a Replacement ContractRelated Agreement, be allocated from time to time between Seller and the Retained Subsidiaries, on the one hand, DuPont and Buyer and as follows:
(i) If a Liability is incurred exclusively in respect of the Purchased CompaniesDPC Business or the Excluded Businesses, on such Liability shall be allocated to Buyer (in respect of the other handDPC Business) or DuPont (in respect of the Excluded Businesses);
(ii) If a Liability cannot be so allocated under clause (i) above, such Liability shall be allocated to DuPont or Buyer, as the case may be, based on the relative proportions of total benefits economic benefit 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 ContractContract remaining as of the Closing Date, measured up to as of the date of the allocation, without duplication) by Seller the DPC Business or the Excluded Business under the relevant Shared Contract. Notwithstanding the foregoing, each of DuPont and Buyer shall be responsible for any or all Liabilities arising from its (or its Subsidiary’s) breach of the relevant Shared Contract to which this Section 5.16 otherwise pertains.
(b) If DuPont or any Retained SubsidiariesSubsidiary, on the one hand, or Buyer or any of its Subsidiaries (including the Transferred DPC Companies and the Purchased Companiestheir Subsidiaries), on the other hand, receives any benefit or payment which under any Shared Contract was intended for the relevant Backstop Designated other, DuPont and Buyer will use their respective reasonable best efforts to, and to cause their respective Subsidiaries to, deliver such benefit or payment to the other party.
(c) Notwithstanding anything to the contrary herein, the parties agree that the Shared ContractContracts listed on Section 5.16(c)(i) of the Seller’s Disclosure Schedule shall not be deemed to be DPC Assets hereunder (the “Excluded Shared Contracts”). Notwithstanding Without limiting the foregoing, each Party the parties have determined that it is advisable that certain Shared Contracts, which are identified on Section 5.16(c)(ii) of the Seller’s Disclosure Schedule, be separated into separate Contracts between the appropriate third party and either the Excluded Businesses or the DPC Business. The parties agree to cooperate and provide reasonable assistance prior to the Closing (with no obligation on the part of either party to pay any costs or fees with respect to such assistance) in effecting the separation of such Shared Contracts. Notwithstanding anything to the contrary herein, without the prior written consent of Buyer, no Transferred DPC Company, any Subsidiary of the Transferred DPC Companies or any Joint Venture or any of its Subsidiaries shall be solely responsible for enter into any and new Shared Contract after the date hereof or any separate Contract with respect to any or all Liabilities of the Shared Contracts set forth on Section 5.16(c)(ii) of the Seller’s Disclosure Schedule to the extent arising out that such new or separate Contract (x) is a sourcing Contract containing “take or pay” obligations of such Transferred DPC Company, Joint Venture or relating to such Party’s respective Subsidiary thereof or (or its Subsidiaries’y) breach requires payment of any costs by such Backstop Designated Shared Transferred DPC Company, Joint Venture or respective Subsidiary thereof to terminate such separate Contract. It is acknowledged that for the purposes of .
(d) As used in this Section 5.05 changes in volume metrics5.16, as well as changes to reflect Buyer’s Subsidiaries shall include the needs of Transferred DPC Companies and their Subsidiaries and the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similarJoint Ventures.”
Appears in 1 contract
Shared Contracts. Seller(a) The Parties acknowledge that Advisor Parent and its Subsidiaries (including the Advisor) are parties to certain of the Identified Contracts (collectively, the “Shared Contracts”) that relate in part to both (i) the operations or conduct of the business of the Target Companies and (ii) the operations or conduct of the business of Advisor Parent and its Subsidiaries other than the operations or conduct of business of the Target Companies (the “Retained Businesses”). Advisor Parent and HTI shall cooperate with each other and use their respective commercially reasonable efforts prior to the Closing (i) to cause each Shared Contract to be apportioned including by obtaining the consent of such counterparty to enter into a new Contract or amendment, or splitting or assigning in relevant part such Shared Contract), effective as of the Closing, between the Target Companies, on the one hand, and BuyerAdvisor Parent and its Subsidiaries other than the Target Companies, on the other hand, shall, pursuant to which Advisor Parent and shall cause their respective controlled Affiliates to, cooperate and shall use their reasonable best efforts to cause its Subsidiaries other than the Contracts set forth in Schedule 5.05(a) (collectively, Target Companies will assume all of 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 relate to Liabilities pursuant to, under or relating to a given Backstop Designated Shared Contract, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract, be allocated from time to time between Seller and the Retained SubsidiariesBusinesses, on the one hand, and Buyer the Advisor will assume all of the rights and obligations under such Shared Contract that relate to the Purchased business of the Target Companies, on the other hand, as and (ii) in the case may beof Advisor Parent and its Subsidiaries other than the Target Companies, based on to cause the relative proportions applicable counterparty to release the Target Companies, as applicable, from the obligations of total benefits received (Advisor Parent and its Subsidiaries other than the Target Companies arising after the Closing Date under the portion of the Shared Contract apportioned to Advisor Parent and its Subsidiaries other than the Target Companies and, in the case of the Target Companies, to cause the applicable counterparty to release Advisor Parent and its Subsidiaries other than the Target Companies from the obligations of the Target Companies arising after the Closing Date under the portion of the Shared Contract apportioned 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, measured up to the date of the allocation, without duplication) by Seller and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased Target Companies, on the other hand, under the relevant Backstop Designated Shared Contract. Notwithstanding the foregoing, Advisor Parent shall not, and shall ensure that its Affiliates do not, enter into a new contract, or amend, split, assign or terminate any Shared Contract, make any payment or grant any concession for the purpose of entering into a new Contract, or amending, splitting, assigning or terminating any Shared Contract, in each Party shall case, without the prior written consent of HTI. With respect to any Shared Contract for which the arrangements described in this Section 6.4(a) could not be solely responsible for any and all Liabilities entered into prior to the extent Closing, Advisor Parent shall provide all services under such Shared Contracts requested by HTI directly to HTI and the Target Company at cost, without markup, for a transitional period to be no longer than nine (9) months, and HTI shall reimburse Advisor Parent for its pro rata share of any costs and expenses actually incurred and paid by Advisor Parent to the counterparty under such Shared Contract in proportion to the amount of services provided by Advisor Parent to HTI and the Target Companies as compared to the total amount of services paid for by Advisor Parent under such Shared Contract during such transitional period.
(b) From and after the Closing, (x) HTI shall indemnify and hold harmless Advisor Parent and its Subsidiaries against all Losses arising out of from or relating to such Party’s (or its Subsidiaries’) breach the portion of any such Backstop Designated Contract apportioned to the Target Companies, (y) Advisor Parent shall indemnify and hold harmless HTI and its Subsidiaries (including the Target Companies) against all Losses arising from or relating to the portion of any Shared Contract. It is acknowledged that for Contract apportioned to Advisor Parent and its Subsidiaries other than the purposes of this Section 5.05 changes in volume metrics, as well as changes to reflect Target Companies and (z) HTI and the needs of the applicable Party, Target Companies shall not be considered when determining whether contract rights extend the term or otherwise amend the terms of any Shared Contract in a manner that would adversely affect any member of Advisor Parent and obligations are “substantially similarits Subsidiaries without Advisor Parent’s prior written consent, and Advisor Parent and its Subsidiaries shall not extend the term or otherwise amend the terms of any Shared Contract in a manner that would adversely affect HTI or the Surviving Entities without HTI’s prior written consent.”
Appears in 1 contract
Shared Contracts. Seller, on the one hand, and Buyer, on the other hand, shall, and shall cause their respective controlled Affiliates to, cooperate with each other and shall use their commercially reasonable best efforts to cause the Shared Contracts set forth in Schedule 5.05(a) (collectively, the “Designated Shared Contracts”) to be amended and/or replaced with separate contract rights and obligations contracts (the “Replacement Contracts”) that provide Buyer that (a) Seller or any Purchased Company with Retained Entity designated by Seller receives contract rights and is bound by obligations (including as to pricing metrics) under the Designated Shared 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 (including as b) any Purchased Subsidiary receives contract rights and is bound by obligations under the Replacement Contracts that are substantially similar to pricing metrics) utilized by Seller in those contract rights and obligations under the Shared Contracts applicable to 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 and, if not completed by the Closing. In addition, Seller shall, and shall cause its controlled Affiliates toClosing with respect to any Shared Contract, for a period of one hundred eighty days six (1806) 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 months following the Closing Date. Notwithstanding the foregoing, none of Seller, Buyer or any Purchased Company with contract rights and obligations (including as of their respective Affiliates shall be required 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 hereofexpend any material amount of money, incur any Liabilities, commence any Action, or such other terms as are reasonably requested by Buyeroffer 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 Designated Shared Contract (each a “Backstop Designated Shared Contract”)prior to the Closing, such Backstop Designated Shared Contract shall be automatically deemed set forth on Schedule 5.05(b) on then after the Closing Date andClosing, until any such Backstop Designated Shared Contract is separated or otherwise replaced, but in no event longer than one hundred eighty (180) daysseparated, to the extent permissible under Law and under the terms of such Backstop Designated Shared Contract, Buyer and Seller shall, or shall cause one of their Affiliates to, (i) Seller shall continue to assume and perform the obligations Liabilities under such Backstop Designated Shared Contract at relating to (A) in the sole cost case of Buyer, the Business and expense (B) in the case 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, the Retained Business (and in each case, the applicable Party shall promptly reimburse Seller the other Party for any out-of-pocket costs and reasonable expenses relating thereto incurred by the other Party 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 documentationits Subsidiaries)), 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 business of the other Party (or the business of its respective AffiliatesSubsidiaries) 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 was separated into Replacement Contracts in accordance with this Section 5.05as described above; provided that, notwithstanding the foregoing provisions of this paragraphforegoing, for a period of one hundred eighty (180) days following the Closing, (x) Seller and its Affiliates no Party shall have any obligation to renew each Designated any 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 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 or and its AffiliatesAffiliates (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 not terminate or cancel be responsible for 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, Liabilities and shall indemnify and hold harmless Buyer and Seller shall reasonably cooperate to replace any Backstop Designated Shared Contracts its Affiliates (including the Purchased Subsidiaries) for such Liabilities and (3) to the extent such Backstop Designated Shared Contracts Liabilities are not separated clearly exclusively related to either the Business 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 Liabilities pursuant to, under or relating to a given Backstop Designated Shared ContractRetained Business, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract, shall be allocated from time to time between Seller and the Retained SubsidiariesBusiness, on the one hand, and Buyer and the Purchased CompaniesRetained Business, on the other hand, as the case may be, based on the relative proportions of total benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term of the applicable Backstop Designated such Shared Contract, measured up to the date of the allocation, without duplication) by Seller and the Retained SubsidiariesBusiness, on the one hand, or Buyer and the Purchased CompaniesRetained Business, on the other hand, under such Shared Contract and (A) Buyer and its Subsidiaries (including the relevant Backstop Designated Shared Contract. Notwithstanding the foregoing, each Party Purchased Subsidiaries) shall be solely responsible for any and all such Liabilities so allocated to the extent arising out of or relating Business and shall indemnify and hold harmless Seller and its Affiliates (including the Retained Entities) for such Liabilities so allocated and (B) Seller and its Affiliates (including the Retained Entities) shall be responsible for such Liabilities so allocated to the Retained Business and shall indemnify and hold harmless Buyer and its Affiliates (including the Purchased Subsidiaries) for such Party’s (or its Subsidiaries’) breach of any such Backstop Designated Shared Contract. It is acknowledged that for the purposes of this Section 5.05 changes in volume metrics, as well as changes to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similarLiabilities so allocated.”
Appears in 1 contract
Shared Contracts. Seller, on the one hand, and Buyer, on the other hand, shall, and shall cause their respective controlled Affiliates Subsidiaries to, cooperate with each other and shall use their commercially reasonable best efforts to (i) 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) (collectivelyto 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 contract rights and obligations 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 Purchased Retained Company with designated by Seller, in the case of the Seller Designated Shared Contracts, receives contract rights and obligations (including as to pricing metrics) under the Designated Shared Replacement Contracts or Replacement Services, as applicable, that are substantially similar similar, to those contract rights and obligations (including as to pricing metrics) 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 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 solely 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) additional costs or fees required to be paid arising from and under a Replacement Contract or Backstop Replacement Service for a Buyer Designated Shared Contract Contract, or in connection with any alternative arrangements entered into pursuant to 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. 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 BuyerClosing Date. If Buyer and Seller are not able to effect the separation or replication of a Designated Shared Contract (each a “Backstop Designated Shared Contract”)prior to the Closing, such Backstop Designated Shared Contract shall be automatically deemed set forth on Schedule 5.05(b) on then after the Closing Date andClosing, until any such Backstop Designated Shared Contract is separated pursuant to a Replacement Contract or otherwise replaced, but in no event longer than one hundred eighty (180) daysreplicated as a Replacement Service, to the extent permissible under applicable Law and under the terms of such Backstop Designated Shared Contract, Buyer and Seller shall (and shall cause their respective Subsidiaries (including, in the case of Buyer, the Group Companies) to) (i) Seller shall continue to assume and perform the obligations Liabilities under such Backstop Designated Shared Contract at relating to its business or the sole cost businesses of its Subsidiaries (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, promptly reimburse Seller the other Party for any out-of-pocket costs and expenses relating thereto incurred by the other Party 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)its Subsidiaries), 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 allocated in accordance with 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 SellerSection 5.05, (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 business of the other Party (or the business of its respective AffiliatesSubsidiaries) 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 was separated into or its services replicated as Replacement Contracts in accordance with this Section 5.05Services as described above; provided that, notwithstanding the foregoing provisions of this paragraphforegoing, for a period of one hundred and eighty (180) days following the Closing, (x) Seller and its Affiliates no Party shall fail to renew each any 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 Affiliateseither party thereto, Seller and its Affiliates the applicable Party shall not terminate or cancel such Designated Shared Contract if as permitted pursuant to the terms thereof, in each case, without the prior written consent of Buyer has not entered into a Replacement Contract in respect of such or Seller, as applicable. Buyer shall be solely responsible for replacing any Buyer Designated Shared ContractContracts, 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 as well as any Backstop Designated other Shared Contracts that are not Transferred Assets or that are Retained Assets, to the extent such Backstop Designated Shared Contracts are not separated or transitioned hereunder and, for services replicated as described above prior to the avoidance of doubt, Closing. Seller shall be under no obligation hereunder to (x) deliver to Buyer the same pricing metrics in solely responsible for replacing any Seller 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 ContractContracts, as well as any other Shared Contracts that are Transferred Assets or that are not Retained Assets, to the case may beextent such Shared Contracts are not separated or services replicated as described above prior to the Closing. With respect to Liabilities pursuant to, under or relating to resulting from a given Backstop Designated Shared Contract, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement ContractContract or Replacement Service, be allocated from time to time between Seller and the Retained SubsidiariesCompanies, on the one hand, and Buyer and the Purchased Group Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term of the applicable Backstop such Designated Shared Contract, measured up to the date of the allocation, without duplication) by Seller and the Retained SubsidiariesCompanies, on the one hand, or Buyer and the Purchased Group Companies, on the other hand, under the relevant Backstop such Designated Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible for any and all Liabilities to the extent arising out of or relating to such Party’s (or its Subsidiaries’) breach of any such Backstop Designated Shared Contract. It is acknowledged that for the purposes of this Section 5.05 5.05, what constitutes “substantially similar” shall be determined after taking into account changes in volume and similar pricing metrics, as well as changes to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similar. Third Party Approvals .”
Appears in 1 contract
Shared Contracts. Seller(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 Contract that is not an Assignable Shared Contract (the “Non-Assignable Shared Contracts”), on the one hand, and Buyer, on the other hand, shall, and shall cause their respective controlled Affiliates to, cooperate and each Party shall use their its reasonable best efforts in consultation with one another prior to the Closing Date to cause the Contracts 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 the applicable Shared Contract, in each case as of the Closing. The obligations set forth in Schedule 5.05(a) (collectivelythis Section 2.3 shall in all cases be subject to Section 2.2. Notwithstanding the foregoing, 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 no Party shall be required to pay any transfer or other fee or incur any further Liabilities liability to split, assign or provide replicate any financial accommodation in connection therewith 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 which the Parties have not received consent as of the Closing, (i) the Company agrees to continue to use reasonable best efforts following the Closing Date to obtain any required consent(s), and the Buyer agrees to cooperate in connection with its obligations pursuant same, (ii) the Parties agree to Backstop Designated Shared Contracts pursuant cooperate in good faith 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 take such actions as are reasonably necessary to avoid any breach or violation by a party as a result of first obtaining and/or entering into any Replacement Contract intended failure to cover Buyer’s and its Subsidiaries’ going forward costs) costs or fees obtain any 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 consent prior to the Closing and for a period of one hundred eighty (180iii) days following the Closing. In additionCompany, Seller shallthe Buyer, and their respective Affiliates 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 Cocadevelop and enter into a Transition Arrangement in respect of such Non-Cola Foodservice or its Affiliates to be replaced with a Replacement Contract that provides Buyer or any Purchased Company with contract rights and obligations Assignable Shared Contract.
(including as to pricing metricsc) that are substantially similar to those contract rights and obligations (including as to pricing metrics) set forth in Following the term sheet regarding such arrangement provided to Buyer Closing prior to the date hereof, split and partial assignment to the Buyer or such other terms as are reasonably requested by Buyer. If a Buyer and Seller are not able to effect the separation Designee or replication of a Designated Shared Contract (each a “Backstop Designated 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), such Backstop Designated Shared Contract shall be automatically (i) amend, modify (other than by automatic extension or renewal if deemed set forth on Schedule 5.05(b) on the Closing Date and, until an amendment or modification of any such Backstop Designated Shared Contract is separated Contract) or otherwise replacedwaive in any respect, 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 any Shared Contract, (iii) Seller shall continue to perform the obligations under such Backstop Designated cancel or terminate any 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 prior to the interim arrangements contemplated by this clause end of its natural term (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 andexcluding, for the avoidance of doubt, Seller shall be under no obligation hereunder to (x) deliver to Buyer the same pricing metrics in any Designated expiration or non-renewal of such Shared Contract in connection accordance with obtaining its terms or any Replacement termination of such Contract by any counterparty thereto other than the Company or any of its Affiliates); or (iii) otherwise waive, release or assign any rights, claims or benefits of the Company or any of its Affiliates under any Shared Contract, in respect thereof or providing an alternative arrangement each case, with respect to a Backstop Designated Shared Contract or items (yi), (ii) after and (iii), in any manner that adversely impacts the Closing Date to separate or transition, or provide Buyer with Business in 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 Liabilities pursuant to, under or relating to a given Backstop Designated Shared Contract, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract, be allocated from time to time between Seller and the Retained Subsidiaries, on the one hand, and Buyer and the Purchased Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term of the applicable Backstop Designated Shared Contract, measured up to the date of the allocation, without duplication) by Seller and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased Companies, on the other hand, under the relevant Backstop Designated Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible for any and all Liabilities to the extent arising out of or relating to such Party’s (or its Subsidiaries’) breach of any such Backstop Designated Shared Contract. It is acknowledged that for the purposes of this Section 5.05 changes in volume metrics, as well as changes to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similarmaterial respect.”
Appears in 1 contract
Shared Contracts. Seller(a) Within thirty (30) days after the execution of this Agreement, on the one handSeller 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 Buyerthe 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 Contract identified pursuant to the first sentence of subsection (a) above that is not an Assignable Shared Contract (the “Non-Assignable Shared Contracts”), on the other handPurchaser will also, shallwithin thirty (30) days after receipt thereof, and shall cause their respective controlled Affiliates to, cooperate and provide the Seller with written notice of those Non-Assignable Shared Contracts that the Purchaser desires to assume in part. Each party shall use their reasonable best efforts its Reasonable Efforts prior to the Initial Closing Date to cause the Contracts set forth 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, in Schedule 5.05(aeach case as of the Initial Closing. Each such Non-Assignable Shared 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 subsection (b), or take any action or fail to take any action that would permit the other party to any such Non-Assignable Shared Contract to terminate prior to its expiration such Shared Contract, in each case, prior to the date that is twelve (12) (collectivelymonths after the Initial Closing Date. Notwithstanding the foregoing, the “Designated Seller shall not be required to partially assign to the Purchaser at the Initial Closing any of the Non-Assignable Shared Contracts”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 replaced 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 separate contract 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 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 of the Seller Group’s rights and obligations (the “Replacement Contracts”) that provide Buyer or any Purchased Company with contract rights and obligations (including as respect to pricing metrics) under the Designated such Non-Assignable 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 Contract with respect 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.)Business; 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 ContractsContracts identified on Schedule 10.7(c) of the Seller Disclosure Schedule, except the Seller and the Purchaser will use Reasonable Efforts to cooperate until the extent earlier of two (2) years following the Initial Closing or the expiration of the remaining term of such Contract. In any such Liability arises out arrangement, the Purchaser will (i) bear the sole responsibility for completion of the gross negligence work or willful misconduct provision of Sellergoods and services, (ii) Buyer and Seller shall hold in trust for the benefit of the other Partybear all Taxes with respect thereto or arising therefrom, 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 be solely entitled to institute alternative arrangements intended to put the Parties in a substantially similar all benefits thereof, 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 Closingor otherwise, (xiv) 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 Liabilities pursuant to, under or relating to a given Backstop Designated Shared Contract, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract, be allocated from time to time between Seller and the Retained Subsidiaries, on the one hand, and Buyer and the Purchased Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term of the applicable Backstop Designated Shared Contract, measured up to the date of the allocation, without duplication) by Seller and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased Companies, on the other hand, under the relevant Backstop Designated Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible for any warranty or breach thereof, any repurchase, indemnity and all Liabilities service obligations thereof and any damages related to termination of such Non-Assignable Shared Contracts, and (v) promptly reimburse the extent arising out reasonable costs and expenses of the Seller and its Affiliates related thereto. If and when such consents or relating to approvals are obtained or such Party’s other required actions have been taken, the partial assignment of such Non-Assignable Shared Contract will be effected in accordance with the terms of this Agreement.
(or its Subsidiaries’d) breach of any such Backstop Designated Shared Contract. It is acknowledged The Seller and the Purchaser each agree that “Reasonable Efforts” for the purposes of this Section 5.05 changes 10.7 includes an obligation on the Purchaser to provide financial information, 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 to, enter into a guaranty, in volume metricseach case, as well as changes may be reasonably requested by the counterparty to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similara Shared Contract.”
Appears in 1 contract
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 best efforts to cause the Shared Contracts set forth in Schedule 5.05(a) (collectively, 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) daysdays following the Closing, 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. 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) to 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 Liabilities pursuant to, under or relating to a given Backstop Designated Shared Contract, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract, be allocated from time to time between Seller and the Retained Subsidiaries, on the one hand, and Buyer and the Purchased CompaniesBuyer, on the other hand, as the case may be, based on the relative proportions of total benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term of the applicable Backstop Designated Shared Contract, measured up to the date of the allocation, without duplication) by Seller and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased CompaniesBuyer, on the other hand, under the relevant Backstop Designated Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible for any and all Liabilities to the extent arising out of or relating to such Party’s (or its Subsidiaries’) breach of any such Backstop Designated Shared Contract. It is acknowledged that for the purposes of this Section 5.05 changes in volume metrics, as well as changes to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similar.”
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, on the one hand, and Buyer, on the other hand, shallbased on the relative proportions of total 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) by Seller, on the one hand, and Buyer, on the other hand. Notwithstanding the foregoing, Seller and Buyer shall cause be responsible for any and all Liabilities arising out of or resulting from their (or their respective controlled Affiliates to, cooperate and shall use their reasonable best efforts Affiliates’) breach of the relevant Shared Contract to cause which this Section 6.11 otherwise pertains.
(b) The parties have determined that it is advisable that the Shared Contracts set forth in Schedule 5.05(a6.11(b) of the Disclosure Schedules (collectively, the “Designated Mirrored Shared Contracts”) be separated into separate Contracts between the appropriate third party and either Seller with respect to the 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 Mirrored Shared Contracts to be replaced with separate contract 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 (the “Replacement Contracts”) that provide Buyer or any Purchased Company with contract rights and obligations (including under a replacement Contract as to pricing metrics) under the Designated Shared Contracts that are substantially similar to those contract 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.)Business; provided, however, that neither Buyer nor Seller shall gives no assurances that any such replacement Contracts will 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 5.05obtained. Buyer and Seller The parties shall cooperate and provide each other with reasonable assistance in effecting such separation of the Designated Mirrored Shared Contracts prior to the Closing and for a period of one hundred eighty (180) days six months following the Closing (with no obligation on the part of any party to pay any costs or fees with respect to such assistance). Prior to the Closing. In addition, Seller shallshall have the principal right and obligation to negotiate the separation of Mirrored Shared Contracts with third party vendors, and Buyer shall cause its controlled Affiliates to, 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 one hundred eighty days (180) use their reasonable best efforts six months following the Closing, Buyer shall have the principal right and obligation to cause any 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 with Coca-Cola Foodservice to which Seller will be a party after separation. Buyer shall bear 100% of the costs of the third party vendors’ fees or its Affiliates to be replaced with a Replacement Contract that provides Buyer other charges arising from 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 related to the separation of the Mirrored Shared Contracts from and after the date hereof, or such other terms as are reasonably requested by Buyer. the Closing until the six-month anniversary of the Closing Date.
(c) If Buyer and Seller the parties are not able to effect the separation of a Designated Mirrored Shared Contract (each a “Backstop Designated Shared Contract”)effective as of the Closing, such Backstop Designated Shared Contract shall be automatically deemed set forth on Schedule 5.05(b) on the Closing Date andthen, until any such Backstop Designated Mirrored Shared Contract is separated or otherwise replaced, but in no event longer than one hundred eighty (180) daysseparated, to the extent permissible under Law and under the terms of such Backstop Designated Mirrored Shared Contract, each of the parties shall (i) Seller shall continue to assume and perform the Liabilities and obligations under such Backstop Designated Mirrored Shared Contract at relating to its respective business or that of its Affiliates (and shall promptly reimburse 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 other parties for any out-of-pocket costs and expenses relating thereto incurred by any other party 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)its Affiliates), 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) allocated in accordance 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 SellerSection 6.11(a), (ii) Buyer and Seller shall hold in trust for the benefit of the other Partyparties, and shall promptly forward to the other Partyparties, any monies or other benefits received pursuant to such Backstop Designated Mirrored Shared Contract relating to the respective businesses of the other Party parties (or its their respective Affiliates) and (iii) Buyer and Seller shall use commercially reasonable efforts endeavor to institute alternative arrangements intended to put the Parties parties in a substantially similar the same economic and operational position as if such Backstop Designated Mirrored Shared Contract were separated into Replacement Contracts in accordance with this Section 5.05separated; provided provided, however, that, notwithstanding if the foregoing provisions parties are not able to effect the separation of this paragraph, for a period of one hundred eighty (180) days following any Mirrored Shared Contract within six months after the Closing, (x) then Seller and shall have no further obligation to Buyer or its Affiliates shall renew each Designated Shared Contract upon the expiration or termination thereof if Buyer has not entered into a Replacement Contract in with respect of thereto and may freely terminate such Designated Mirrored Shared Contract; and provided, unless Buyer confirms to Seller in writing further, that Buyer does not need to receive any amounts owed by one Party (the benefit of such Designated Shared Contract, and (y“Payor Party”) to the extent any such Designated Shared Contract contains an other Party (the “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 (180Payee Party”) 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 Liabilities pursuant to, under or relating to a given Backstop Designated Shared Contract, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract, Section 6.11(c)(i) may be allocated from time to time between Seller and satisfied at the Retained Subsidiaries, on the one hand, and Buyer and the Purchased Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term of the applicable Backstop Designated Shared Contract, measured up to the date of the allocation, without duplication) by Seller and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased Companies, on the other hand, under the relevant Backstop Designated Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible for any and all Liabilities to the extent arising out of or relating to such Payor Party’s (or its Subsidiaries’) breach of option by setting off such amounts against any such Backstop Designated Shared Contract. It is acknowledged that for amounts owed to it from the purposes of this Payee Party pursuant to Section 5.05 changes in volume metrics, as well as changes to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similar6.11(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 controlled Affiliates to, cooperate and shall use their reasonable best efforts (a) With respect to cause the a list of certain Shared Contracts set forth in Schedule 5.05(a) (collectively, the “Designated Shared Contracts”) to be replaced with separate contract rights reasonably agreed upon by ▇▇▇▇▇▇ and obligations (Buyer following the “Replacement Contracts”) that provide Buyer or any Purchased Company with contract rights date hereof 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 additioneach, 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 Specified Shared Contract”), such Backstop Designated which shall include the material Shared Contract Contracts listed Schedule 6.22(a), Parent and Buyer shall be automatically deemed set forth on Schedule 5.05(b) on cooperate with each other and use their commercially reasonable efforts prior to the Closing Date and(i) to divide, until any modify or replicate (in whole or in part, on reasonable market-standard terms proposed by the counterparty of such Backstop Designated Shared Contract is separated Contract, taking into account differences between the Business and the Excluded Businesses following the Closing) the respective rights, obligations and liabilities relating to the Business under and in respect of such Specified Shared Contract, or otherwise replaced, but in no event longer than one hundred eighty (180ii) days, to the extent permissible the action contemplated in the foregoing clause (i) is not possible, novate the respective rights, obligations and liabilities relating to the Business under Law and under the terms in respect of such Backstop Designated Specified Shared Contract, such that, effective as of the Closing, (A) Buyer or its designated Affiliate is the beneficiary of the post-Closing rights, and is responsible for the post-Closing obligations and liabilities, related to that portion of such Specified Shared Contract related to the operation or conduct of the Business (the “Business Portion”) (so that, subsequent to the Closing, Parent and its controlled Affiliates (other than the Companies) shall have no post-Closing rights or post-Closing obligations and liabilities with respect to the Business Portion of such Specified Shared Contract) and (B) Parent and its controlled Affiliates (other than the Companies) is the beneficiary of the rights and is responsible for the obligations and liabilities related to such Specified Shared Contract other than the Business Portion (the “Non-Business Portion”) (so that, subsequent to the Closing, Buyer and its Affiliates shall have no rights, obligations or liabilities with respect to the Non-Business Portion of such Specified Shared Contract).
(b) If the Closing occurs before all Specified Shared Contracts are assigned or otherwise divided, modified or replicated pursuant to Section 6.22(a), Parent and Buyer shall use commercially reasonable efforts and cooperate with each other in any mutually agreeable and lawful arrangement under which Parent or one of its controlled Affiliates will provide Buyer or its designated Affiliate all of the economic claims, rights and benefits of the Business Portion of such Specified Shared Contract (on reasonable market-standard terms proposed by the counterparty of such Shared Contract, taking into account differences between the Business and the Excluded Businesses following the Closing) until the earliest of (i) the expiration of the then-current term of the applicable Specified Shared Contract, (iii) Seller shall continue to perform the obligations under termination of such Backstop Designated Specified Shared Contract at upon mutual agreement by the sole cost and expense of Buyer parties thereto, subject to Buyer’s consent (i.e. Buyer shall promptlynot to be unreasonably withheld, 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 conditioned 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)delayed), and (iii) one (1) year following the Closing.
(c) Notwithstanding anything to the contrary contained in this Agreement but subject to Section 6.19, neither Parent nor any of its Affiliates shall (i) be required to expend any money, commence or participate in any Action, incur liabilities or offer or grant any accommodation (financial or otherwise) to any third party to obtain any consent described in this Section 6.22. or (ii) have any obligation pursuant to this Section 6.22 with respect to any Contract that is governed by the Transition Services Agreement. Any incremental costs to obtain any consent described in this Section 6.22 shall be borne by ▇▇▇▇▇.
(d) From and after the Closing, (i) Buyer shall indemnify and hold the Seller Indemnitees harmless Parent and its Affiliates from and against any all Losses resulting from Third-Party Claims against Parent and all Liabilities based upon, its Affiliates to the extent arising out of from or relating to the interim arrangements contemplated by this clause (i) with respect to the Backstop Designated Business Portion of any Specified Shared Contracts, except to the extent any such Liability arises out of the gross negligence or willful misconduct of SellerContract, (ii) Parent shall indemnify and hold harmless Buyer and Seller shall hold in trust for the benefit of the other Party, Companies from and shall promptly forward against all Losses resulting from Third-Party Claims against Buyer and its Affiliates to the other Party, any monies extent arising from or other benefits received pursuant to such Backstop Designated Shared Contract relating to the respective businesses Non-Business Portion of the other Party (or its respective Affiliates) and any Specified Shared Contract, (iii) Buyer and Seller the Companies shall use commercially reasonable efforts to institute alternative arrangements intended to put not extend the Parties term or otherwise amend the terms of any Shared Contract 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 manner that would adversely affect Parent or any 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 in any material respect without Parent’s prior written consent (not to be unreasonably withheld, conditioned 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, delayed) and (yiv) 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 Parent and its Affiliates shall not terminate extend the term or cancel such Designated otherwise amend the terms of any Shared Contract in a manner that would adversely affect Buyer or the Companies in any material respect without Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed); provided, that clauses (i) and (ii) shall not apply 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 indemnities relating to the extent such Backstop Designated Parties’ obligations with respect to Specified Shared Contracts are not separated or transitioned hereunder and, for included in another agreement between 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 Parties with respect to a Backstop Designated Shared Contract or thereto (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 Liabilities pursuant to, under or relating to a given Backstop Designated Shared Contract, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract, be allocated from time to time between Seller and the Retained Subsidiaries, on Parties acknowledge that the one hand, and Buyer and the Purchased Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received (to the extent the Liabilities relate to a specific period, over Transition Services Agreement includes such period, and otherwise over the term of the applicable Backstop Designated Shared Contract, measured up to the date of the allocation, without duplication) by Seller and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased Companies, on the other hand, under the relevant Backstop Designated Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible for any and all Liabilities to the extent arising out of or relating to such Party’s (or its Subsidiaries’) breach of any such Backstop Designated Shared Contract. It is acknowledged that for the purposes of this Section 5.05 changes in volume metrics, as well as changes to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similarindemnities).”
Appears in 1 contract
Sources: Purchase Agreement (NCR Voyix 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 reasonable best efforts to cause the Contracts set forth in Schedule 5.05(a(a) (collectively, 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 Prior to the Closing. , Buyer and Seller shall mutually determine in good faith, with respect to 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 listed on Schedule 7.12 (180) days following the Closing. In additioneach, 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 Specified Shared Contract”), whether to, and subject to such Backstop Designated determination, use commercially reasonable efforts to:
(i) seek to assign in part to an Acquired Company or Buyer at the Closing that portion of the Specified Shared Contract relating exclusively to the Business, so that such Acquired 72 Company or Buyer shall be automatically deemed set forth entitled to the rights and benefits relating exclusively to the Business under such Specified Shared Contract and shall assume the related portion of any Liabilities inuring to the Business (each such partially assigned Specified Shared Contract, a “Partially Assigned Contract”), or
(ii) seek for an Acquired Company or Buyer to enter into a new independent Contractual Obligation with the counterparty of such Specified Shared Contract with respect to that portion of the Specified Shared Contract relating exclusively to the Business, to be effective as of the Closing Date, on Schedule 5.05(b) terms that are substantially equivalent in the aggregate to those contractual rights and obligations of Seller or any of its Subsidiaries under such Specified Shared Contracts or on the applicable counterparty’s generally commercially available terms and conditions (each new Contractual Obligation entered into by an Acquired Company or Buyer, a “New Contract”); and, in each case, cause the applicable counterparty to release Seller and its Subsidiaries from the obligations and Liabilities arising after the Closing Date andthat relate to the Business. In the event that (1) the assignment in part of such Specified Shared Contract requires any third party’s Consent and such Consent has been sought by Seller or its Subsidiaries and has not been obtained on or prior to the Closing or (2) the applicable counterparty is unable to enter into a New Contract with an Acquired Company or Buyer on or prior to the Closing, the Closing shall occur in accordance with Section 2.1 notwithstanding the foregoing and without any adjustment to the Purchase Price on account thereof. For the avoidance of doubt, with respect to any Specified Shared Contract, following the date hereof, Buyer and Seller may mutually determine not to seek to take such actions described in clauses (i) and (ii) and upon such determination, such Contractual Obligation will deemed not to be a Specified Shared Contract.
(b) If, prior to the Closing, the Parties are not able, with respect to any Specified Shared Contract, to partially assign, split or separate (as applicable) any such Specified Shared Contract in accordance with Section 7.12(a), then, until any the earliest of (A) such Backstop Designated time as such New Contract is executed or such rights, benefits, burdens and Liabilities are so assigned as a Partially Assigned Contract, (B) the expiration of the then-current term of such Specified Shared Contract is separated (as in effect with respect to the Business only) in accordance with its current terms and (C) six months (or otherwise replacednine months if necessary to provide the services required under the Transition Services Agreement) following the Closing Date:
(i) the Parties shall continue to use reasonable efforts to seek for an Acquired Company or Buyer to enter into such a New Contract with such counterparty or to seek to assign such benefits and Liabilities under such Specified Shared Contract, but in no event longer than one hundred eighty each case, with respect to that portion of such Specified Shared Contract relating exclusively to the Business, and
(180ii) days, the Parties shall reasonably cooperate to enter into a lawful and commercially reasonable arrangement (including pursuant to the terms of the Transition Services Agreement) under which (1) Buyer shall obtain (to the extent permissible permitted under Law any relevant underlying Contractual Obligation and Applicable Law) all the economic benefits under such Specified Shared Contract relating exclusively to the terms Business and (2) Buyer shall bear and perform all the economic burdens and the obligations associated with such portion of such Backstop Designated Specified Shared Contract, .
(ic) 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 bear all out-of-pocket costs and expenses and payment incurred in connection with the partial assignment of obligations made by Seller under all Backstop Designated any Specified Shared Contracts during such monthor entrance into any New Contracts pursuant to this Section 7.12 provided that Seller shall not be required to (A) amend or modify any Contractual Obligation or Specified Shared Contract, together with reasonable supporting documentation))(B) modify, and Buyer shall indemnify and hold the Seller Indemnitees harmless from and against relinquish, forbear or narrow any and all Liabilities based uponright or (C) pay any consideration, arising out of or relating grant any accommodation (financial or otherwise) in connection therewith.
(d) Notwithstanding anything to the interim arrangements contemplated by this clause (i) with respect to contrary in the Backstop Designated Shared Contractsforegoing, except to Seller shall, or shall cause the extent any such Liability arises out of Acquired Companies to, promptly and within five Business Days after the gross negligence or willful misconduct of Sellerdate hereof, (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 obtain the Specified Consent for each of the Specified Contractual Obligations. If a Specified Consent with respect to put the Parties in a substantially similar economic position Specified Contractual Obligation has not been obtained 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 ContractParties agree to negotiate and, unless Buyer confirms prior 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 implement a reasonable alternative arrangement for the Business (by way of a standalone replacement contract between the third party and the Acquired Companies) having substantially comparable (in the aggregate) core functionality (as described with respect to such Specified Contractual Obligation in Section 7.12(d) of the Disclosure 73 Schedule) and economic terms as such Specified Contractual Obligation (such arrangements, the “Alternative Arrangements”) to enable the Acquired Companies and the Business to continue to operate in the ordinary course in all material respects immediately following the Closing in the absence of, or termination of, the Specified Contractual Obligation. Seller shall reasonably cooperate to replace bear 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 costs and expense in connection with obtaining any Replacement Contract in respect thereof or providing and securing 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 Liabilities pursuant to, under or relating to a given Backstop Designated Shared Contract, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract, be allocated from time to time between Seller and the Retained Subsidiaries, on the one hand, and Buyer and the Purchased Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term of the applicable Backstop Designated Shared Contract, measured up to the date of the allocation, without duplication) by Seller and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased Companies, on the other hand, under the relevant Backstop Designated Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible for any and all Liabilities to the extent arising out of or relating to such Party’s (or its Subsidiaries’) breach of any such Backstop Designated Shared Contract. It is acknowledged that for the purposes of this Section 5.05 changes in volume metrics, as well as changes to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similarAlternative Arrangement.”
Appears in 1 contract
Shared Contracts. Seller(i) Notwithstanding anything to the contrary in this Agreement, on the one handPurchased 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, on the other hand, shall, and shall cause their respective controlled Affiliates to, cooperate and shall use their its reasonable best efforts to cause identify Shared Contracts containing Shared Contract Rights and Shared Contract Obligations that, in each case, are required to be provided or performed after the Contracts set forth in Schedule 5.05(a) Closing Date (collectivelysuch Shared Contracts, the “Designated 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 be replaced with separate contract rights effect the assignment of the Shared Contract Rights and obligations (the “Replacement Contracts”) that provide Shared Contract Obligations to Buyer or any Purchased Company with contract rights and obligations (including as to pricing metrics) under the Designated Ongoing Shared Contracts that are substantially similar by, among other things, amending the Ongoing Shared Contracts to those contract rights separately assign the Shared Contract Rights and obligations (including as the Shared Contract Obligations to pricing metrics) utilized Buyer and, if necessary or deemed desirable by Seller in the conduct of the Business prior and Buyer, to the Closing. Buyer and Seller shall each bear one-half (1/2) of the costs and expenses associated execute new contracts with first obtaining and/or entering into any Replacement Contract (e.g., transfer fees, deposits, etc.)respect thereto; provided, howeverthat 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 neither in no event shall Seller or any of its Affiliates have any obligation to any Third Party or to Buyer nor Seller with respect to any Shared Contract 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 required on pricing terms equal to incur any further Liabilities or provide any financial accommodation in connection therewith or in connection with its obligations pursuant the terms applicable 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 Business under a Replacement Contract or Backstop Designated 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 any alternative arrangements entered into pursuant to this Section 5.05. Buyer and Seller shall cooperate and provide each other with reasonable assistance on the Closing Date, unless the parties otherwise agree in effecting such separation writing, during the remaining term of the Designated applicable Ongoing Shared Contracts prior Contract, not to exceed 12 months, the Closing and for a period of one hundred eighty (180) days following the Closing. In addition, Seller shall, and parties shall cause its controlled Affiliates to, for a period of one hundred eighty days (180) use their respective reasonable best efforts to cause any Contract with Coca-Cola Foodservice or its Affiliates to be replaced with a Replacement Contract that provides allow 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 permitted by applicable Requirements of 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 reasonably within the contractual or other ability or control 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 (Company 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 Liabilities pursuant to, under or relating to a given Backstop Designated Shared Contract, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract, be allocated from time to time between Seller and the Retained Subsidiaries, on the one hand, and Buyer and the Purchased Companies, on the other handAffiliate, as the case may be, based on the relative proportions of total benefits received (to receive such Shared Contract Rights, subject to the extent Shared Contract Obligations; provided, however, that Buyer shall reimburse the Liabilities relate to a specific period, over such period, and otherwise over the term of the Company or its applicable Backstop Designated Shared Contract, measured up to the date of the allocation, without duplication) by Seller and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased Companies, on the other hand, under the relevant Backstop Designated Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible Affiliate for any reasonable and all Liabilities to the extent arising out of or relating to such Party’s (or its Subsidiaries’) breach of documented out-of-pocket expenses incurred in connection with any such Backstop Designated Shared Contract. It is acknowledged that for the purposes of this Section 5.05 changes in volume metrics, as well as changes to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similararrangement.”
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Shared Contracts. Seller(a) From the date of this Agreement until the Closing, on the one hand, and Buyer, on the other hand, parties hereto shall, and shall cause their respective controlled 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 and in respect of any Shared Contract, such that, effective as of the Closing Date, (i) Buyer is the beneficiary of the 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 rights, 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 and with Buyer in the 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 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 Transition Services Agreement, upon Buyer’s reasonable written request, Seller shall use their reasonable best efforts efforts, and Buyer shall reasonably cooperate with Seller, to cause the Contracts set forth applicable counterparties to any Shared Contract to release Buyer and its Affiliates from all obligations comprising the Buyer Portion of such Shared Contract; provided, that (A) Buyer shall be solely responsible for, and shall bear, all costs, expenses and fees incurred in Schedule 5.05(aconnection 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 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 (collectivelyincluding the Acquired Seller Party) from and after the Closing, and (C) for the “Designated Shared Contracts”avoidance of doubt, nothing in this Section 7.14(a) shall require Seller or any of its Affiliates to be replaced pay any transfer or other fee, incur any Liability or offer any concession in connection with separate contract such release except to the extent Buyer has agreed in advance in writing to bear and promptly reimburse Seller for the same.
(b) If 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 (the “Replacement Contracts”under and in respect of any such Shared Contract as contemplated by Section 7.14(a) 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. , then, subject to the additional terms of this Section 7.14(b), the Closing shall nonetheless take place on the terms set forth herein and, thereafter, until the earlier of the expiration or termination of such Shared Contract in accordance with its terms and the date 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 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 their respective Affiliates to, for a period of one hundred eighty days (180) use their commercially reasonable best efforts to cause obtain any Contract with Coca-Cola Foodservice or its Affiliates required Consents and enter into any necessary agreements 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 effectuate 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))foregoing, 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 parties will cooperate in such Liability arises out of the gross negligence or willful misconduct of Sellerendeavors, (ii) Buyer and Seller shall hold in trust for the benefit of the other Partyshall, and shall promptly forward to the other Partycause their respective Affiliates to, 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 their commercially reasonable efforts to institute alternative arrangements intended to put the Parties cooperate (each at its own expense) 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 thatany lawful, notwithstanding the foregoing provisions of this paragraphcontractually permissible and commercially reasonable arrangement under which, 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 shall receive the interest in the benefits of the Buyer Portion under such Shared Contract 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 Seller Affiliate (other than the Acquired Seller Party) shall receive the interest in the benefits of the Seller Portion under such Shared Contract, as (iii) Buyer shall perform all obligations under any Buyer Portion of a Shared Contract and (iv) Seller shall or shall cause a Seller Affiliate (other than the case may be. With respect Acquired Seller Party) to Liabilities pursuant to, perform all obligations under or relating to any Seller Portion of a given Backstop Designated Shared Contract, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract, be allocated from time to time between Seller and the Retained Subsidiaries, on the one hand, and Buyer and the Purchased Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term of the applicable Backstop Designated Shared Contract, measured up to the date of the allocation, without duplication) by Seller and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased Companies, on the other hand, under the relevant Backstop Designated Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible for any and all Liabilities to the extent arising out of or relating to such Party’s (or its Subsidiaries’) breach of any such Backstop Designated Shared Contract. It is acknowledged that for the purposes of this Section 5.05 changes in volume metrics, as well as changes to reflect the needs of the applicable Party, shall not be considered when determining whether contract rights and obligations are “substantially similar.”
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Sources: Asset Purchase Agreement (EDGEWELL PERSONAL CARE Co)
Shared Contracts. SellerExcept as otherwise agreed in writing by Seller and Purchaser or as otherwise provided in this Agreement or any Ancillary Agreement, on until the one handearlier of eighteen (18) months following the Closing Date and the expiration or termination date of the applicable Shared Contract, Seller and Buyer, on the other hand, shall, Purchaser shall (and shall cause their respective controlled Affiliates Representatives to, cooperate and shall ) use their reasonable best efforts efforts, to cause obtain or structure an arrangement for the Contracts set forth in Schedule 5.05(a) (collectively, applicable Transferred Entity to receive the “Designated Shared Contracts”) to be replaced with separate contract rights and benefits, and bear the obligations (and burdens, of such portion of any such Shared Contract to the “Replacement Contracts”) that provide Buyer or any Purchased Company with contract rights and obligations (including extent relating to the Business, 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 reasonably determined by Seller and Purchaser in the conduct of the Business prior to the Closing. Buyer good faith; provided that Seller and Seller its Representatives 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 not be required to incur take any further Liabilities action that would: (a) constitute a breach or provide other contravention of the rights of any financial accommodation Person(s), (b) contravene applicable Law or any such Shared Contract, or (c) adversely affect the contractual rights of Seller or any of its Affiliates in connection therewith or in connection with its obligations pursuant to Backstop Designated Shared Contracts pursuant to this Section 5.05any material respect; provided, further, that Buyer if any such arrangement results in a charge that would affect the Post-Closing Adjustment in a manner adverse to Seller, such charge shall be responsible for all ongoing (i.e.disregarded in such calculations; provided, going forwardfurther, 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 additionthat, 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) solely with respect to the Backstop Designated Shared Customer Contracts, except to all such third party fees, costs and expenses (but not 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 payment obligations relating to the respective businesses delivery of services after Closing to the other Party (Business under such Shared Customer Contracts) incurred in connection with obtaining or its respective Affiliates) and (iii) Buyer and Seller shall use commercially reasonable efforts structuring any such arrangement, including any consent, separation, amendment, sublicense, subcontract, sublease or replacement arrangement necessary to institute alternative arrangements intended to put provide the Parties in a substantially similar economic position as if such Backstop Designated Shared Contract were separated into Replacement Contracts in accordance applicable Transferred Entity 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 ContractCustomer Contract as contemplated hereby, 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 shall be borne 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, extent any Shared Contract relates to vendor services that is not a Designated Shared Contract or a Backstop Designated Shared Contract, as the case may be. With respect to Liabilities pursuant to, under or relating to a given Backstop Designated Shared Contract, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract, be allocated from time to time between Seller and the Retained Subsidiaries, on the one hand, and Buyer and the Purchased Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received (are provided to the extent the Liabilities relate to a specific periodBusiness, over such periodany third-party fees, costs and otherwise over the term of the applicable Backstop Designated Shared Contract, measured up to the date of the allocation, without duplication) by Seller and the Retained Subsidiaries, on the one hand, or Buyer and the Purchased Companies, on the other hand, under the relevant Backstop Designated Shared Contract. Notwithstanding the foregoing, each Party shall be solely responsible for any and all Liabilities to the extent arising out of or expenses relating to such Party’s (or its Subsidiaries’) breach of any such Backstop Designated Shared Contract. It is acknowledged that for Contracts shall be governed exclusively by the purposes of this Section 5.05 changes in volume metrics, as well as changes to reflect the needs terms and conditions of the applicable Party, Transition Services Agreement). Seller shall not terminate, amend, waive or otherwise modify any Shared Contract without Purchaser’s prior written consent (not to be considered when determining whether contract rights and obligations are “substantially similarunreasonably withheld, conditioned or delayed).”
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