Shared Contracts. (i) Buyer acknowledges that certain contracts, understandings or agreements to which Seller or one or more of its Subsidiaries is party contain terms that are relevant to, are for the benefit of and/or impose obligations on Seller and its Subsidiaries with respect to both the Business and one or more of Seller’s Other Businesses (such contracts, understandings and arrangements being collectively referred to herein as “Shared Contracts”). Buyer acknowledges and agrees that such Shared Contracts shall be addressed by the parties as set forth in this Section 8T. (ii) Section 8T(ii) of the Seller Disclosure Letter (as amended after the date hereof with the agreement of Buyer and Seller) sets forth certain material Shared Contracts under which, except as set forth in the Ancillary Agreements, Buyer, the members of the Paper Group (and their Subsidiaries) and the Business shall cease to have any rights or obligations from and after the Closing. Seller acknowledges and agrees that, from and after the Closing, it and its Subsidiaries shall be solely responsible for performance of the Shared Contracts set forth on Section 8T(ii) of the Seller Disclosure Letter and Buyer acknowledges and agrees that neither it nor any of its Affiliates (including any member of the Paper Group or any other Affiliate that owns assets of the Business) shall have any rights or obligations under any of the Shared Contracts except as set forth in the Ancillary Agreements. (iii) Section 8T(iii) of the Seller Disclosure Letter (as amended after the date hereof with the agreement of Buyer and Seller) sets forth certain material Shared Contracts under which both the Business and Seller’s Other Businesses perform obligations, have liabilities and/or receive benefits (the “Ongoing Shared Contracts”). With respect to each Ongoing Shared Contract, from and after the date hereof until expiration or termination of such Ongoing Shared Contract, each of Seller and Buyer shall, at the request of the other, cooperate with each other to schedule discussions and participate in negotiations with the counterparty to, or obligor or obligee under, each such Ongoing Shared Contract regarding a split of such Ongoing Shared Contract that, as nearly as practicable, approximates the rights and obligations of the Business and Seller’s Other Businesses with respect to such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to such split; provided that in no event shall either Seller or Buyer be obligated to execute, deliver or (except to the extent executed and delivered by such Person) perform under, or be obligated to cause another Person to execute, deliver or (except to the extent executed and delivered by such Person) perform under, such split contract without such party’s prior written consent. For the avoidance of doubt, in no event shall the split of, or any similar action with respect to, any Ongoing Shared Contract be a condition to the obligations of any party to this Agreement. (iv) To the extent that a split contract with respect to such Ongoing Shared Contract is not obtained prior to Closing, then from and after the Closing until such Ongoing Shared Contract expires or is terminated, to the extent permitted by law and, unless waived by Seller, to the extent otherwise permissible in light of the terms of such Ongoing Shared Contract, then Seller shall cause Seller’s Other Businesses and Buyer shall cause Buyer Sub, the members of the Paper Group, each of their respective Subsidiaries and the Business to perform obligations under each such Ongoing Shared Contract to which it is a party or bound and Seller and Buyer shall cooperate with each other and use reasonable best efforts such that the applicable members of the Paper Group and their Subsidiaries shall perform the obligations under, and receive the benefits of, such Ongoing Shared Contracts, in each case in the manner set forth on Section 8T(iv) of the Seller Disclosure Letter (as amended after the date hereof with the consent of Buyer and Seller) or otherwise in a manner that as nearly as practicable approximates the obligations and benefits of the Business and Seller’s Other Businesses with respect to such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to Closing. In the event that, after the Closing, Buyer performs its obligations under an Ongoing Shared Contract that has not been split and Seller or one of its Subsidiaries receives benefits under such Ongoing Shared Contract that are attributable to the operations of the Business after the Closing Date, Seller shall pay over such benefits to Buyer. In the event that, after the Closing, Seller performs its obligations under an Ongoing Shared Contract that has not been split and Buyer or one of its Subsidiaries receives benefits that are attributable to the operation of one of Seller’s Other Businesses after Closing, Buyer shall pay over such benefits to Seller. Each of Buyer and Seller shall indemnify the other for Losses such party or its Affiliates suffer as a result of any breach of any Ongoing Shared Contract by such party. (v) Buyer and Seller agree that, from and after the Closing, such party shall not, and shall cause its Affiliates not to, amend, waive, settle or compromise any material matter or claim related to any Ongoing Shared Contract without the prior written consent of the other. For all purposes of this Section 8T, upon an effective split of an Ongoing Shared Contract that each of Buyer and Seller has agreed to, such Ongoing Shared Contract shall be deemed terminated for purposes of this Section 8T.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Aldabra 2 Acquisition Corp.), Purchase and Sale Agreement (Boise Cascade Holdings, L.L.C.)
Shared Contracts. (i) Buyer acknowledges that certain contracts, understandings or agreements to which Seller or one or more of its Subsidiaries is party contain terms The Commercial Contracts that are partly associated with the EL Business and partly with other businesses of the Sellers or their affiliates (the “Shared Contracts”) are set out in Part I of Appendix 8. The Sellers shall use their best efforts to have, in close cooperation with the Purchaser, all Shared Contracts divided as soon as practicable after Closing, by agreeing upon and documenting with the counterparty an appropriate separation of the rights and obligations associated with the EL Business and the rights and obligations associated with other businesses of the Sellers or their affiliates. Until a division of a Shared Contract is agreed and documented by all relevant toparties, are the Parent Company or the Subsidiary shall remain a party to the Shared Contracts, and the Sellers shall give all reasonable assistance to the Purchaser, at the Purchaser’s request, to exercise or enforce the rights and perform the obligations associated with the EL Business under the Shared Contracts. Without limiting the foregoing, until such division is achieved, the Sellers shall without delay communicate to the Purchaser any customer orders and other orders for delivery of EL Business products as well as all enquiries relating to the EL Business under the Shared Contracts, and the Parties shall agree upon the arrangement whereby the Shared Contract, for the relevant part pertaining to the EL Business, will be performed by the Purchaser (at the cost and for the benefit of and/or impose obligations on Seller and its Subsidiaries with respect to both the Business and one or more Purchaser but formally in the name of Seller’s Other Businesses (such contracts, understandings and arrangements being collectively referred to herein as “Shared Contracts”the Sellers). Buyer acknowledges and agrees that If a Shared Contract relates to supplies, deliveries or services to the Sellers, the Purchaser shall have the benefit of all outstanding orders relating to the EL Business under such Shared Contracts (a non-exclusive listing of such orders set out in Appendix 2, sheets Open PO’s Espoo and Open PO’s Beaverton), and shall, pursuant to Section 4.2, pay, to the extent required to be paid after the Transfer Date, the trade accounts payable set out in Appendix 9. Until a division of such Shared Contract has been achieved, the Sellers shall be addressed by facilitate that the parties as set forth in this Section 8T.
Purchaser may (ii) Section 8T(ii) at the cost of the Seller Disclosure Letter (as amended after Purchaser but formally in the date hereof name of the Sellers) order products and otherwise enforce the rights associated with the agreement EL Business under such Shared Contracts. If there are other contracts (than those identified in Part 1 of Buyer Appendix 8), which are partly associated with the EL Business and Seller) sets forth certain material Shared Contracts under which, except as set forth in the Ancillary Agreements, Buyer, the members partly with other businesses of the Paper Group (and Sellers or their Subsidiaries) and the Business shall cease to have any rights or obligations from and after the Closing. Seller acknowledges and agrees thataffiliates, from and after the Closing, it and its Subsidiaries shall be solely responsible for performance of the Shared Contracts set forth on Section 8T(ii) of the Seller Disclosure Letter and Buyer acknowledges and agrees that neither it nor any of its Affiliates (including any member of the Paper Group or any other Affiliate that owns assets of the Business) shall have any rights or obligations under any of the Shared Contracts except as set forth in the Ancillary Agreements.
(iii) Section 8T(iii) of the Seller Disclosure Letter (as amended after the date hereof with the agreement of Buyer and Seller) sets forth certain material Shared Contracts under which both the Business and Seller’s Other Businesses perform obligations, have liabilities and/or receive benefits (the “Ongoing Shared Contracts”). With respect to each Ongoing Shared Contract, from and after the date hereof until expiration or termination of such Ongoing Shared Contract, each of Seller and Buyer shall, at the upon request of the other, cooperate with each other to schedule discussions and participate in negotiations with Purchaser the counterparty to, or obligor or obligee under, each such Ongoing Shared Contract regarding a split of such Ongoing Shared Contract that, as nearly as practicable, approximates the rights and obligations of the Business and Seller’s Other Businesses above principles shall be applied with respect to such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to such split; provided that in no event shall either Seller or Buyer be obligated to execute, deliver or (except to the extent executed and delivered by such Person) perform under, or be obligated to cause another Person to execute, deliver or (except to the extent executed and delivered by such Person) perform under, such split contract without such party’s prior written consent. For the avoidance of doubt, in no event shall the split of, or any similar action with respect to, any Ongoing Shared Contract be a condition to the obligations of any party to this Agreementcontracts.
(iv) To the extent that a split contract with respect to such Ongoing Shared Contract is not obtained prior to Closing, then from and after the Closing until such Ongoing Shared Contract expires or is terminated, to the extent permitted by law and, unless waived by Seller, to the extent otherwise permissible in light of the terms of such Ongoing Shared Contract, then Seller shall cause Seller’s Other Businesses and Buyer shall cause Buyer Sub, the members of the Paper Group, each of their respective Subsidiaries and the Business to perform obligations under each such Ongoing Shared Contract to which it is a party or bound and Seller and Buyer shall cooperate with each other and use reasonable best efforts such that the applicable members of the Paper Group and their Subsidiaries shall perform the obligations under, and receive the benefits of, such Ongoing Shared Contracts, in each case in the manner set forth on Section 8T(iv) of the Seller Disclosure Letter (as amended after the date hereof with the consent of Buyer and Seller) or otherwise in a manner that as nearly as practicable approximates the obligations and benefits of the Business and Seller’s Other Businesses with respect to such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to Closing. In the event that, after the Closing, Buyer performs its obligations under an Ongoing Shared Contract that has not been split and Seller or one of its Subsidiaries receives benefits under such Ongoing Shared Contract that are attributable to the operations of the Business after the Closing Date, Seller shall pay over such benefits to Buyer. In the event that, after the Closing, Seller performs its obligations under an Ongoing Shared Contract that has not been split and Buyer or one of its Subsidiaries receives benefits that are attributable to the operation of one of Seller’s Other Businesses after Closing, Buyer shall pay over such benefits to Seller. Each of Buyer and Seller shall indemnify the other for Losses such party or its Affiliates suffer as a result of any breach of any Ongoing Shared Contract by such party.
(v) Buyer and Seller agree that, from and after the Closing, such party shall not, and shall cause its Affiliates not to, amend, waive, settle or compromise any material matter or claim related to any Ongoing Shared Contract without the prior written consent of the other. For all purposes of this Section 8T, upon an effective split of an Ongoing Shared Contract that each of Buyer and Seller has agreed to, such Ongoing Shared Contract shall be deemed terminated for purposes of this Section 8T.
Appears in 2 contracts
Sources: Sale of Assets Agreement, Sale of Assets Agreement (Planar Systems Inc)
Shared Contracts. Except as otherwise agreed by Seller and Buyer or as otherwise provided in this Agreement or any other Transaction Agreement (iincluding with respect to any Shared Contracts that relate to services to be provided under the Transition Services Agreement), until the earlier of 12 months following the Closing Date and the expiration or termination date of the applicable Shared Contract (assuming, for these purposes, that the then-current term in effect as of immediately prior to the Closing is not renewed or extended), the Parties shall (and shall cause their respective Affiliates to) Buyer acknowledges that certain contractsuse Commercially Reasonable Efforts to, understandings or agreements at no cost to which Seller or one its Affiliates, obtain or more structure an arrangement for Buyer or its applicable Affiliates to receive the rights and benefits, and bear the obligations and burdens, of such portion of any such Shared Contract that relates to the Business and is allocated to the Company Group in accordance with this Section 5.18. Each such arrangement shall provide Buyer with the ability to direct Seller or its Subsidiaries is party contain terms applicable Affiliate to undertake any action or not undertake any action with respect to the underlying Shared Contract solely as it relates to the Business; provided that are relevant to, are for the benefit of and/or impose obligations on Seller and its Subsidiaries Affiliates shall not be required to take any action or not take any action that would constitute a breach or other contravention of the rights of any other Person, or be ineffective under or contravene Applicable Law or the applicable Shared Contract or materially and adversely affect the contractual rights of Seller or its Affiliates under such Shared Contract. Buyer shall indemnify and hold harmless Seller and its Affiliates from any and all Damages or other Liabilities arising out of each such arrangement (other than Shared Contractual Liabilities (x) allocated to Seller in accordance with respect to both the Business and one this Section 5.18 or more (y) arising out of Seller’s Other Businesses (such contracts, understandings and arrangements being collectively referred to herein as “Shared Contracts”breach of this Section 5.18). Seller shall indemnify and hold harmless Buyer acknowledges and agrees that its Affiliates from any and all Damages or other Liabilities arising out of (x) any breach of any Shared Contract by Seller or its Affiliates or (y) the gross negligence or willful misconduct of Seller or its Affiliates in connection with Seller’s or its Affiliates’ administration of any such arrangement or any Shared Contract. With respect to Shared Contractual Liabilities pursuant to, under or relating to any Shared Contract, such Shared Contracts Contractual Liabilities shall be addressed by the parties allocated between Seller and Buyer as set forth follows: (a) if a Liability is incurred solely in this Section 8T.
(ii) Section 8T(ii) respect of the Seller Disclosure Letter Business or the remainder of Seller’s business (as amended after other than the date hereof with the agreement of Buyer and Seller) sets forth certain material Shared Contracts under whichBusiness), except as set forth in the Ancillary Agreements, Buyer, the members of the Paper Group (and their Subsidiaries) and the Business shall cease to have any rights or obligations from and after the Closing. Seller acknowledges and agrees that, from and after the Closing, it and its Subsidiaries such Liability shall be solely responsible for performance of the Shared Contracts set forth on Section 8T(ii) of the Seller Disclosure Letter and allocated to Buyer acknowledges and agrees that neither it nor any of its Affiliates (including any member of the Paper Group or any other Affiliate that owns assets in respect of the Business) shall have any rights or obligations under any Seller (in respect of the Shared Contracts except reminder of Seller’s business (other than the Business)); and (b) if a Liability cannot be so allocated under clause (a), such Liability shall be allocated to Seller or Buyer, as set forth in the Ancillary Agreements.
(iii) Section 8T(iii) case may be, based on the relative proportion of the Seller Disclosure Letter (as amended after the date hereof with the agreement of Buyer and Seller) sets forth certain material Shared Contracts under which both total benefit received by the Business and Seller’s Other Businesses perform obligations, have liabilities and/or receive benefits (the “Ongoing Shared Contracts”). With respect to each Ongoing Shared Contract, from and after the date hereof until expiration or termination of such Ongoing Shared Contract, each of Seller and Buyer shall, at the request of the other, cooperate with each other to schedule discussions and participate in negotiations with the counterparty to, or obligor or obligee under, each such Ongoing Shared Contract regarding a split of such Ongoing Shared Contract that, as nearly as practicable, approximates the rights and obligations of the Business and Seller’s Other Businesses with respect to such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to such split; provided that in no event shall either Seller or Buyer be obligated to execute, deliver or (except to the extent executed and delivered by such Person) perform under, or be obligated to cause another Person to execute, deliver or (except to the extent executed and delivered by such Person) perform under, such split contract without such party’s prior written consent. For the avoidance of doubt, in no event shall the split of, or any similar action with respect to, any Ongoing Shared Contract be a condition to the obligations of any party to this Agreement.
(iv) To the extent that a split contract with respect to such Ongoing Shared Contract is not obtained prior to Closing, then from and after the Closing until such Ongoing Shared Contract expires or is terminated, to the extent permitted by law and, unless waived by Seller, to the extent otherwise permissible in light of the terms of such Ongoing Shared Contract, then Seller shall cause Seller’s Other Businesses and Buyer shall cause Buyer Sub, the members of the Paper Group, each of their respective Subsidiaries and the Business to perform obligations under each such Ongoing Shared Contract to which it is a party or bound and Seller and Buyer shall cooperate with each other and use reasonable best efforts such that the applicable members of the Paper Group and their Subsidiaries shall perform the obligations under, and receive the benefits of, such Ongoing Shared Contracts, in each case in the manner set forth on Section 8T(iv) of the Seller Disclosure Letter (as amended after the date hereof with the consent of Buyer and Seller) or otherwise in a manner that as nearly as practicable approximates the obligations and benefits of the Business and Seller’s Other Businesses with respect to such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to Closing. In the event that, after the Closing, Buyer performs its obligations under an Ongoing Shared Contract that has not been split and Seller or one of its Subsidiaries receives benefits under such Ongoing Shared Contract that are attributable to the operations of the Business after the Closing Date, Seller shall pay over such benefits to Buyer. In the event that, after the Closing, Seller performs its obligations under an Ongoing Shared Contract that has not been split and Buyer or one of its Subsidiaries receives benefits that are attributable to the operation of one reminder of Seller’s Other Businesses after Closing, Buyer shall pay over such benefits to Seller. Each of Buyer and Seller shall indemnify business (other than the other for Losses such party or its Affiliates suffer as a result of any breach of any Ongoing Business) under the relevant Shared Contract by such partyContract.
(v) Buyer and Seller agree that, from and after the Closing, such party shall not, and shall cause its Affiliates not to, amend, waive, settle or compromise any material matter or claim related to any Ongoing Shared Contract without the prior written consent of the other. For all purposes of this Section 8T, upon an effective split of an Ongoing Shared Contract that each of Buyer and Seller has agreed to, such Ongoing Shared Contract shall be deemed terminated for purposes of this Section 8T.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Fortress Transportation & Infrastructure Investors LLC), Membership Interest Purchase Agreement (United States Steel Corp)
Shared Contracts. (ia) Buyer acknowledges that certain contracts, understandings or agreements to which Seller or one or more of its Subsidiaries is party contain terms that are relevant to, are for the benefit of and/or impose obligations on Seller and its Subsidiaries with respect to both the Business and one or more of Seller’s Other Businesses (such contracts, understandings and arrangements being collectively referred to herein as “Shared Contracts”). Buyer acknowledges and agrees that such Shared Contracts shall be addressed by the parties as set forth in this Section 8T.
(ii) Section 8T(ii) of the Seller Disclosure Letter (as amended after the date hereof with the agreement of Buyer and Seller) sets forth certain material Shared Contracts under which, except as set forth in the Ancillary Agreements, Buyer, the members of the Paper Group (and their Subsidiaries) and the Business shall cease to have any rights or obligations from and after the Closing. Seller acknowledges and agrees that, from and after the Closing, it and its Subsidiaries shall be solely responsible for performance of the Shared Contracts set forth on Section 8T(ii) of the Seller Disclosure Letter and Buyer acknowledges and agrees that neither it nor any of its Affiliates (including any member of the Paper Group or any other Affiliate that owns assets of the Business) shall have any rights or obligations under any of the Shared Contracts except as set forth in the Ancillary Agreements.
(iii) Section 8T(iii) of the Seller Disclosure Letter (as amended after the date hereof with the agreement of Buyer and Seller) sets forth certain material Shared Contracts under which both the Business and Seller’s Other Businesses perform obligations, have liabilities and/or receive benefits (the “Ongoing Shared Contracts”). With respect to each Ongoing Shared Contract, from and after From the date hereof until expiration the date that is twelve (12) months following the Closing Date, Seller and Purchaser shall, and shall cause their respective Affiliates to, use their commercially reasonable efforts to work together (and, if necessary and desirable, to work with the third party to any Shared Contract) to divide, partially assign, modify or termination replicate (in whole or in part) the respective rights and obligations under and in respect of such Ongoing any Shared Contract, each such that, following the Closing, (i) Purchaser, an Affiliate of Purchaser or the Transferred Company is the beneficiary of the rights and is responsible for the obligations related to the portion of such Shared Contract related to the Business (the “Purchaser Portion”), which rights shall be an asset of and which obligations shall be a liability of Purchaser, an Affiliate of Purchaser or the Transferred Company, and (ii) Seller or an Affiliate of Seller and Buyer shall, at (other than the request Transferred Company) is the beneficiary of the other, cooperate with each other rights and is responsible for the obligations related to schedule discussions and participate in negotiations with the counterparty to, or obligor or obligee under, each such Ongoing Shared Contract regarding relating to the Seller Business (the “Seller Portion”), which rights shall be an asset of and which obligations shall be a split liability of such Ongoing Seller or an Affiliate of Seller (other than the Transferred Company). Nothing in this Agreement shall require the division, partial assignment, modification or replication of a Shared Contract thatunless and until any necessary Consents are obtained or made, as nearly applicable. If Seller and Purchaser or their respective Affiliates, as practicableapplicable, approximates are not able to enter into an arrangement to divide, partially assign, modify or replicate (in whole or in part) the rights and obligations under and in respect of the Business and Seller’s Other Businesses with respect to any such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to such split; provided that in no event shall either Seller or Buyer be obligated to executethe Closing, deliver or (except the Closing shall, subject to the extent executed and delivered by such Person) perform under, or be obligated to cause another Person to execute, deliver or satisfaction (except to the extent executed and delivered by such Person) perform under, such split contract without such party’s prior written consent. For the avoidance of doubt, in no event shall the split of, or any similar action with respect to, any Ongoing Shared Contract be a condition to the obligations of any party to this Agreement.
(iv) To the extent that a split contract with respect to such Ongoing Shared Contract is not obtained prior to Closing, then from and after the Closing until such Ongoing Shared Contract expires or is terminatedor, to the extent permitted by law andapplicable Law, unless waived the waiver by Seller, the parties entitled to the extent otherwise permissible in light of the terms of such Ongoing Shared Contract, then Seller shall cause Seller’s Other Businesses and Buyer shall cause Buyer Sub, the members of the Paper Group, each of their respective Subsidiaries and the Business to perform obligations under each such Ongoing Shared Contract to which it is a party or bound and Seller and Buyer shall cooperate with each other and use reasonable best efforts such that the applicable members of the Paper Group and their Subsidiaries shall perform the obligations under, and receive the benefits of, such Ongoing Shared Contracts, in each case in the manner set forth on Section 8T(ivbenefit thereof) of the Seller Disclosure Letter conditions set forth in Article VI (as amended after other than those conditions which by their terms are to be satisfied at the Closing but subject to the satisfaction at the Closing or waiver of such conditions), nonetheless take place on the terms set forth herein and, thereafter and until the earlier of (x) the date hereof with that is twelve (12) months following the consent Closing Date and (y) the date on which the division, partial assignment, modification or replication of Buyer and Seller) or otherwise in a manner that as nearly as practicable approximates the obligations and benefits of the Business and Seller’s Other Businesses with respect to such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to Closing. In the event that, after the Closing, Buyer performs its obligations under an Ongoing Shared Contract that has not been split and Seller or one of its Subsidiaries receives benefits under such Ongoing Shared Contract that are attributable to the operations of the Business after the Closing Dateis effected, Seller shall pay over such benefits to Buyer. In the event that, after the Closing, Seller performs its obligations under an Ongoing Shared Contract that has not been split and Buyer or one of its Subsidiaries receives benefits that are attributable to the operation of one of Seller’s Other Businesses after Closing, Buyer shall pay over such benefits to Seller. Each of Buyer and Seller shall indemnify the other for Losses such party or its Affiliates suffer as a result of any breach of any Ongoing Shared Contract by such party.
(v) Buyer and Seller agree that, from and after the Closing, such party shall notPurchaser shall, and shall cause its their respective Affiliates not to, amendcooperate in any commercially reasonable arrangement to provide that (1) Purchaser, waive, settle an Affiliate of Purchaser or compromise any material matter or claim related to any Ongoing the Transferred Company shall receive the interest in the benefits and obligations of the Purchaser Portion under and in respect of such Shared Contract without and (2) Seller or an Affiliate of Seller (other than the prior written consent Transferred Company) shall receive the interest in the benefits and obligations of the other. For all purposes Seller Portion under and in respect of this Section 8T, upon an effective split of an Ongoing such Shared Contract that each of Buyer and Seller has agreed to, such Ongoing Shared Contract shall be deemed terminated for purposes of this Section 8T.Contract.
Appears in 1 contract
Sources: Equity and Asset Purchase Agreement (Martin Marietta Materials Inc)
Shared Contracts. (ia) Buyer acknowledges that certain contracts, understandings or agreements to which Seller or one or more of its Subsidiaries is party contain terms that are relevant to, are for the benefit of and/or impose obligations on Seller and its Subsidiaries with respect to both the Business and one or more of Seller’s Other Businesses (such contracts, understandings and arrangements being collectively referred to herein as “Shared Contracts”). Buyer acknowledges and agrees that such Shared Contracts shall be addressed by the parties as set forth in this Section 8T.
(ii) Section 8T(ii) of the Seller Disclosure Letter (as amended after From the date hereof with until the agreement of Buyer date that is six (6) months following the Principal Closing Date, Seller shall or shall cause the Company to, and Seller) sets forth certain material Shared Contracts under which, except as set forth in the Ancillary Agreements, Buyer, the members of the Paper Group (and their Subsidiaries) and the Business shall cease to have any rights or obligations from and after the Principal Closing. Seller acknowledges , Purchaser shall cause the Company to, use its reasonable best efforts to work with the other party (and, if necessary and agrees desirable, to work with the third party to any Shared Contract) to divide, partially assign, modify or replicate (in whole or in part) the respective rights and obligations under and in respect of any Shared Contract, such that, following the Principal Closing, (i) the Company or an Affiliate of the Company is the beneficiary of the rights and is solely responsible for the obligations related to the portion of such Shared Contract to the extent such obligations are related to the Business (the “Company Portion”), which rights shall be an asset of and which obligations shall be a liability of the Company or an Affiliate of the Company, and (ii) Seller or an Affiliate of Seller (other than a Group Company) is the beneficiary of the rights and is solely responsible for the obligations related to the Seller Business (the “Seller Portion”), which rights shall be an asset of and which obligations shall be a liability of Seller or an Affiliate of Seller (other than a Group Company). Nothing in this Agreement shall require the division, partial assignment, modification or replication of a Shared Contract unless and until any necessary Consents are obtained or made, as applicable. From and after the Principal Closing, Purchaser shall indemnify and hold harmless Seller and its Affiliates from any Losses and liabilities incurred by Seller or its Affiliates arising from or relating to the Company Portion of any Shared Contract and Seller shall indemnify and hold harmless Purchaser, the Group Companies, and their respective Affiliates for any Losses and liabilities incurred by Purchaser, the Group Companies or any of their respective Affiliates arising out of or relating to the Seller Portion of any Shared Contract. If Seller is not able or is not able to cause the Company to, and from and after the Principal Closing, it and its Subsidiaries shall be solely responsible for performance of Purchaser is not able to cause the Shared Contracts set forth on Section 8T(ii) of the Seller Disclosure Letter and Buyer acknowledges and agrees that neither it nor any of its Affiliates (including any member of the Paper Group or any other Affiliate that owns assets of the Business) shall have any rights or obligations under any of the Shared Contracts except as set forth in the Ancillary Agreements.
(iii) Section 8T(iii) of the Seller Disclosure Letter (as amended after the date hereof with the agreement of Buyer and Seller) sets forth certain material Shared Contracts under which both the Business and Seller’s Other Businesses perform obligations, have liabilities and/or receive benefits (the “Ongoing Shared Contracts”). With respect to each Ongoing Shared Contract, from and after the date hereof until expiration or termination of such Ongoing Shared Contract, each of Seller and Buyer shall, at the request of the other, cooperate with each other to schedule discussions and participate in negotiations with the counterparty Company to, enter into an arrangement to divide, partially assign, modify or obligor replicate (in whole or obligee under, each such Ongoing Shared Contract regarding a split of such Ongoing Shared Contract that, as nearly as practicable, approximates in part) the rights and obligations under and in respect of the Business and Seller’s Other Businesses with respect to any such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to such split; provided that in no event shall either Seller or Buyer be obligated to executethe Principal Closing, deliver or (except the Principal Closing shall, subject to the extent executed and delivered by such Person) perform under, or be obligated to cause another Person to execute, deliver or satisfaction (except to the extent executed and delivered by such Person) perform under, such split contract without such party’s prior written consent. For the avoidance of doubt, in no event shall the split of, or any similar action with respect to, any Ongoing Shared Contract be a condition to the obligations of any party to this Agreement.
(iv) To the extent that a split contract with respect to such Ongoing Shared Contract is not obtained prior to Closing, then from and after the Closing until such Ongoing Shared Contract expires or is terminatedor, to the extent permitted by law andapplicable Law, unless waived the waiver by Seller, the parties entitled to the extent otherwise permissible in light of the terms of such Ongoing Shared Contract, then Seller shall cause Seller’s Other Businesses and Buyer shall cause Buyer Sub, the members of the Paper Group, each of their respective Subsidiaries and the Business to perform obligations under each such Ongoing Shared Contract to which it is a party or bound and Seller and Buyer shall cooperate with each other and use reasonable best efforts such that the applicable members of the Paper Group and their Subsidiaries shall perform the obligations under, and receive the benefits of, such Ongoing Shared Contracts, in each case in the manner set forth on Section 8T(ivbenefit thereof) of the Seller Disclosure Letter conditions set forth in Article VI (as amended after other than those conditions which by their terms are to be satisfied at the Principal Closing but subject to the satisfaction at the Principal Closing or waiver of such conditions), nonetheless take place on the terms set forth herein and, thereafter and until the earlier of (A) the date hereof with that is six (6) months following the consent Principal Closing and (B) the date on which the division, partial assignment, modification or replication of Buyer such Shared Contract is effected, Seller shall, and SellerPurchaser shall cause the Company to, cooperate in any commercially reasonable arrangement to provide that (1) or otherwise a Group Company shall receive the interest in a manner that as nearly as practicable approximates the benefits and obligations and benefits of the Business Company Portion under and Seller’s Other Businesses with in respect to of such Ongoing Shared Contract during and (2) Seller or an Affiliate of Seller (other than a Group Company) shall receive the term interest in the benefits and obligations of the Ongoing Seller Portion under and in respect of such Shared Contract prior to Closing. In the event that, after the Closing, Buyer performs its obligations under an Ongoing Shared Contract that has not been split and Seller or one of its Subsidiaries receives benefits under such Ongoing Shared Contract that are attributable to the operations of the Business after the Closing Date, Seller shall pay over such benefits to Buyer. In the event that, after the Closing, Seller performs its obligations under an Ongoing Shared Contract that has not been split and Buyer or one of its Subsidiaries receives benefits that are attributable to the operation of one of Seller’s Other Businesses after Closing, Buyer shall pay over such benefits to Seller. Each of Buyer and Seller shall indemnify the other for Losses such party or its Affiliates suffer as a result of any breach of any Ongoing Shared Contract by such partyContract.
(v) Buyer and Seller agree that, from and after the Closing, such party shall not, and shall cause its Affiliates not to, amend, waive, settle or compromise any material matter or claim related to any Ongoing Shared Contract without the prior written consent of the other. For all purposes of this Section 8T, upon an effective split of an Ongoing Shared Contract that each of Buyer and Seller has agreed to, such Ongoing Shared Contract shall be deemed terminated for purposes of this Section 8T.
Appears in 1 contract
Shared Contracts. (ia) Buyer acknowledges that certain contracts, understandings or agreements to which Seller or one or more of its Subsidiaries is party contain terms that are relevant to, are for the benefit of and/or impose obligations on Seller and its Subsidiaries with With respect to both the Business and one or more a list of Seller’s Other Businesses (such contracts, understandings and arrangements being collectively referred to herein as “Shared Contracts”). Buyer acknowledges and agrees that such certain Shared Contracts shall to be addressed reasonably agreed upon by the parties as set forth in this Section 8T.
(ii) Section 8T(ii) of the Seller Disclosure Letter (as amended after ▇▇▇▇▇▇ and Buyer following the date hereof with and prior to the agreement of Buyer and Seller) sets forth certain Closing (each, a “Specified Shared Contract”), which shall include the material Shared Contracts under whichlisted Schedule 6.22(a), except as set forth in the Ancillary Agreements, Buyer, the members of the Paper Group (and their Subsidiaries) and the Business shall cease to have any rights or obligations from and after the Closing. Seller acknowledges and agrees that, from and after the Closing, it and its Subsidiaries shall be solely responsible for performance of the Shared Contracts set forth on Section 8T(ii) of the Seller Disclosure Letter and Buyer acknowledges and agrees that neither it nor any of its Affiliates (including any member of the Paper Group or any other Affiliate that owns assets of the Business) shall have any rights or obligations under any of the Shared Contracts except as set forth in the Ancillary Agreements.
(iii) Section 8T(iii) of the Seller Disclosure Letter (as amended after the date hereof with the agreement of Buyer and Seller) sets forth certain material Shared Contracts under which both the Business and Seller’s Other Businesses perform obligations, have liabilities and/or receive benefits (the “Ongoing Shared Contracts”). With respect to each Ongoing Shared Contract, from and after the date hereof until expiration or termination of such Ongoing Shared Contract, each of Seller and Buyer shall, at the request of the other, cooperate with each other to schedule discussions and participate in negotiations with the counterparty to, or obligor or obligee under, each such Ongoing Shared Contract regarding a split of such Ongoing Shared Contract that, as nearly as practicable, approximates the rights and obligations of the Business and Seller’s Other Businesses with respect to such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to such split; provided that in no event shall either Seller or Buyer be obligated to execute, deliver or (except to the extent executed and delivered by such Person) perform under, or be obligated to cause another Person to execute, deliver or (except to the extent executed and delivered by such Person) perform under, such split contract without such party’s prior written consent. For the avoidance of doubt, in no event shall the split of, or any similar action with respect to, any Ongoing Shared Contract be a condition to the obligations of any party to this Agreement.
(iv) To the extent that a split contract with respect to such Ongoing Shared Contract is not obtained prior to Closing, then from and after the Closing until such Ongoing Shared Contract expires or is terminated, to the extent permitted by law and, unless waived by Seller, to the extent otherwise permissible in light of the terms of such Ongoing Shared Contract, then Seller shall cause Seller’s Other Businesses and Buyer shall cause Buyer Sub, the members of the Paper Group, each of their respective Subsidiaries and the Business to perform obligations under each such Ongoing Shared Contract to which it is a party or bound and Seller Parent and Buyer shall cooperate with each other and use their commercially reasonable best efforts prior to the Closing (i) to divide, modify or replicate (in whole or in part, on reasonable market-standard terms proposed by the counterparty of such that Shared Contract, taking into account differences between the applicable members Business and the Excluded Businesses following the Closing) the respective rights, obligations and liabilities relating to the Business under and in respect of such Specified Shared Contract, or (ii) to the extent the action contemplated in the foregoing clause (i) is not possible, novate the respective rights, obligations and liabilities relating to the Business under and in respect of such Specified Shared Contract, such that, effective as of the Paper Group Closing, (A) Buyer or its designated Affiliate is the beneficiary of the post-Closing rights, and their Subsidiaries is responsible for the post-Closing obligations and liabilities, related to that portion of such Specified Shared Contract related to the operation or conduct of the Business (the “Business Portion”) (so that, subsequent to the Closing, Parent and its controlled Affiliates (other than the Companies) shall perform have no post-Closing rights or post-Closing obligations and liabilities with respect to the Business Portion of such Specified Shared Contract) and (B) Parent and its controlled Affiliates (other than the Companies) is the beneficiary of the rights and is responsible for the obligations underand liabilities related to such Specified Shared Contract other than the Business Portion (the “Non-Business Portion”) (so that, subsequent to the Closing, Buyer and receive its Affiliates shall have no rights, obligations or liabilities with respect to the benefits ofNon-Business Portion of such Specified Shared Contract).
(b) If the Closing occurs before all Specified Shared Contracts are assigned or otherwise divided, such Ongoing Shared Contractsmodified or replicated pursuant to Section 6.22(a), Parent and Buyer shall use commercially reasonable efforts and cooperate with each other in each case in the manner set forth on Section 8T(iv) any mutually agreeable and lawful arrangement under which Parent or one of its controlled Affiliates will provide Buyer or its designated Affiliate all of the Seller Disclosure Letter (as amended after the date hereof with the consent of Buyer and Seller) or otherwise in a manner that as nearly as practicable approximates the obligations economic claims, rights and benefits of the Business Portion of such Specified Shared Contract (on reasonable market-standard terms proposed by the counterparty of such Shared Contract, taking into account differences between the Business and Sellerthe Excluded Businesses following the Closing) until the earliest of (i) the expiration of the then-current term of the applicable Specified Shared Contract, (ii) the termination of such Specified Shared Contract upon mutual agreement by the parties thereto, subject to Buyer’s Other Businesses consent (not to be unreasonably withheld, conditioned or delayed), and (iii) one (1) year following the Closing.
(c) Notwithstanding anything to the contrary contained in this Agreement but subject to Section 6.19, neither Parent nor any of its Affiliates shall (i) be required to expend any money, commence or participate in any Action, incur liabilities or offer or grant any accommodation (financial or otherwise) to any third party to obtain any consent described in this Section 6.22. or (ii) have any obligation pursuant to this Section 6.22 with respect to such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to Closing. In the event that, after the Closing, Buyer performs its obligations under an Ongoing Shared any Contract that has not been split and Seller or one of its Subsidiaries receives benefits under such Ongoing Shared Contract that are attributable is governed by the Transition Services Agreement. Any incremental costs to the operations of the Business after the Closing Date, Seller obtain any consent described in this Section 6.22 shall pay over such benefits to Buyer. In the event that, after the Closing, Seller performs its obligations under an Ongoing Shared Contract that has not been split and Buyer or one of its Subsidiaries receives benefits that are attributable to the operation of one of Seller’s Other Businesses after Closing, Buyer shall pay over such benefits to Seller. Each of Buyer and Seller shall indemnify the other for Losses such party or its Affiliates suffer as a result of any breach of any Ongoing Shared Contract be borne by such party▇▇▇▇▇.
(vd) Buyer and Seller agree that, from From and after the Closing, such party (i) Buyer shall not, indemnify and shall cause hold harmless Parent and its Affiliates from and against all Losses resulting from Third-Party Claims against Parent and its Affiliates to the extent arising from or relating to the Business Portion of any Specified Shared Contract, (ii) Parent shall indemnify and hold harmless Buyer and the Companies from and against all Losses resulting from Third-Party Claims against Buyer and its Affiliates to the extent arising from or relating to the Non-Business Portion of any Specified Shared Contract, (iii) Buyer and the Companies shall not to, amend, waive, settle extend the term or compromise otherwise amend the terms of any Shared Contract in a manner that would adversely affect Parent or any of its Affiliates in any material matter or claim related to any Ongoing Shared Contract respect without the Parent’s prior written consent (not to be unreasonably withheld, conditioned or delayed) and (iv) Parent and its Affiliates shall not extend the term or otherwise amend the terms of the other. For all purposes of this Section 8T, upon an effective split of an Ongoing any Shared Contract in a manner that each of would adversely affect Buyer or the Companies in any material respect without Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed); provided, that clauses (i) and Seller has agreed to, (ii) shall not apply if indemnities relating to the Parties’ obligations with respect to Specified Shared Contracts are included in another agreement between the Parties with respect thereto (and the Parties acknowledge that the Transition Services Agreement includes such Ongoing Shared Contract shall be deemed terminated for purposes of this Section 8T.indemnities).
Appears in 1 contract
Sources: Purchase Agreement (NCR Voyix Corp)
Shared Contracts. (a) Shared Contractual Liabilities pursuant to, under or directly relating to Shared Contracts shall, unless otherwise allocated pursuant to Section 5.16(a) of the Seller's Disclosure Schedule, this Agreement, a Local Asset Transfer Agreement, a Local Purchase Agreement or a Related Agreement, be allocated between DuPont and Buyer as follows:
(i) Buyer acknowledges that certain contractsIf a Liability is incurred exclusively in respect of the DPC Business or the Excluded Businesses, understandings or agreements to which Seller or one or more of its Subsidiaries is party contain terms that are relevant to, are for the benefit of and/or impose obligations on Seller and its Subsidiaries with respect to both the Business and one or more of Seller’s Other Businesses (such contracts, understandings and arrangements being collectively referred to herein as “Shared Contracts”). Buyer acknowledges and agrees that such Shared Contracts Liability shall be addressed by allocated to Buyer (in respect of the parties as set forth DPC Business) or DuPont (in this Section 8T.respect of the Excluded Businesses);
(ii) If a Liability cannot be so allocated under clause (i) above, such Liability shall be allocated to DuPont or Buyer, as the case may be, based on the relative proportions of total economic benefit received (over the term of the Shared Contract remaining as of the Closing Date, measured as of the date of the allocation) by the DPC Business or the Excluded Business under the relevant Shared Contract. Notwithstanding the foregoing, each of DuPont and Buyer shall be responsible for any or all Liabilities arising from its (or its Subsidiary's) breach of the relevant Shared Contract to which this Section 8T(ii5.16 otherwise pertains.
(b) If DuPont or any Retained Subsidiary, on the one hand, or Buyer or any of its Subsidiaries (including the Transferred DPC Companies and their Subsidiaries), on the other hand, receives any benefit or payment which under any Shared Contract was intended for the other, DuPont and Buyer will use their respective reasonable best efforts to, and to cause their respective Subsidiaries to, deliver such benefit or payment to the other party.
(c) Notwithstanding anything to the contrary herein, the parties agree that the Shared Contracts listed on Section 5.16(c)(i) of the Seller Seller's Disclosure Letter Schedule shall not be deemed to be DPC Assets hereunder (as amended the "Excluded Shared Contracts"). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Section 5.16(c)(ii) of the Seller's Disclosure Schedule, be separated into separate Contracts between the appropriate third party and either the Excluded Businesses or the DPC Business. The parties agree to cooperate and provide reasonable assistance prior to the Closing (with no obligation on the part of either party to pay any costs or fees with respect to such assistance) in effecting the separation of such Shared Contracts. Notwithstanding anything to the contrary herein, without the prior written consent of Buyer, no Transferred DPC Company, any Subsidiary of the Transferred DPC Companies or any Joint Venture or any of its Subsidiaries shall enter into any new Shared Contract after the date hereof or any separate Contract with the agreement of Buyer and Seller) sets forth certain material Shared Contracts under which, except as set forth in the Ancillary Agreements, Buyer, the members of the Paper Group (and their Subsidiaries) and the Business shall cease respect to have any rights or obligations from and after the Closing. Seller acknowledges and agrees that, from and after the Closing, it and its Subsidiaries shall be solely responsible for performance all of the Shared Contracts set forth on Section 8T(ii5.16(c)(ii) of the Seller Seller's Disclosure Letter and Buyer acknowledges and agrees Schedule to the extent that neither it nor such new or separate Contract (x) is a sourcing Contract containing "take or pay" obligations of such Transferred DPC Company, Joint Venture or respective Subsidiary thereof or (y) requires payment of any of its Affiliates (including any member of the Paper Group costs by such Transferred DPC Company, Joint Venture or any other Affiliate that owns assets of the Business) shall have any rights or obligations under any of the Shared Contracts except as set forth in the Ancillary Agreementsrespective Subsidiary thereof to terminate such separate Contract.
(iiid) As used in this Section 8T(iii) of 5.16, Buyer's Subsidiaries shall include the Seller Disclosure Letter (as amended after the date hereof with the agreement of Buyer Transferred DPC Companies and Seller) sets forth certain material Shared Contracts under which both the Business and Seller’s Other Businesses perform obligations, have liabilities and/or receive benefits (the “Ongoing Shared Contracts”). With respect to each Ongoing Shared Contract, from and after the date hereof until expiration or termination of such Ongoing Shared Contract, each of Seller and Buyer shall, at the request of the other, cooperate with each other to schedule discussions and participate in negotiations with the counterparty to, or obligor or obligee under, each such Ongoing Shared Contract regarding a split of such Ongoing Shared Contract that, as nearly as practicable, approximates the rights and obligations of the Business and Seller’s Other Businesses with respect to such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to such split; provided that in no event shall either Seller or Buyer be obligated to execute, deliver or (except to the extent executed and delivered by such Person) perform under, or be obligated to cause another Person to execute, deliver or (except to the extent executed and delivered by such Person) perform under, such split contract without such party’s prior written consent. For the avoidance of doubt, in no event shall the split of, or any similar action with respect to, any Ongoing Shared Contract be a condition to the obligations of any party to this Agreement.
(iv) To the extent that a split contract with respect to such Ongoing Shared Contract is not obtained prior to Closing, then from and after the Closing until such Ongoing Shared Contract expires or is terminated, to the extent permitted by law and, unless waived by Seller, to the extent otherwise permissible in light of the terms of such Ongoing Shared Contract, then Seller shall cause Seller’s Other Businesses and Buyer shall cause Buyer Sub, the members of the Paper Group, each of their respective Subsidiaries and the Business to perform obligations under each such Ongoing Shared Contract to which it is a party or bound and Seller and Buyer shall cooperate with each other and use reasonable best efforts such that the applicable members of the Paper Group and their Subsidiaries shall perform the obligations under, and receive the benefits of, such Ongoing Shared Contracts, in each case in the manner set forth on Section 8T(iv) of the Seller Disclosure Letter (as amended after the date hereof with the consent of Buyer and Seller) or otherwise in a manner that as nearly as practicable approximates the obligations and benefits of the Business and Seller’s Other Businesses with respect to such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to Closing. In the event that, after the Closing, Buyer performs its obligations under an Ongoing Shared Contract that has not been split and Seller or one of its Subsidiaries receives benefits under such Ongoing Shared Contract that are attributable to the operations of the Business after the Closing Date, Seller shall pay over such benefits to Buyer. In the event that, after the Closing, Seller performs its obligations under an Ongoing Shared Contract that has not been split and Buyer or one of its Subsidiaries receives benefits that are attributable to the operation of one of Seller’s Other Businesses after Closing, Buyer shall pay over such benefits to Seller. Each of Buyer and Seller shall indemnify the other for Losses such party or its Affiliates suffer as a result of any breach of any Ongoing Shared Contract by such partyJoint Ventures.
(v) Buyer and Seller agree that, from and after the Closing, such party shall not, and shall cause its Affiliates not to, amend, waive, settle or compromise any material matter or claim related to any Ongoing Shared Contract without the prior written consent of the other. For all purposes of this Section 8T, upon an effective split of an Ongoing Shared Contract that each of Buyer and Seller has agreed to, such Ongoing Shared Contract shall be deemed terminated for purposes of this Section 8T.
Appears in 1 contract
Shared Contracts. 2.3.1 Subject to the provisions of this Section 2.3, the Transferred Assets shall include those rights relating to the Business which arise from and after the Closing under a Shared Contract set forth on Schedule 2.3.1 (each, an “Allocable Shared Contract”), subject to the terms and conditions of such Allocable Shared Contract (such rights, the “Shared Contract Rights”), and the Assumed Liabilities shall include those Liabilities corresponding to such rights, other than those Liabilities which arise as a result of any breach thereof by Seller or any of its Affiliates prior to the Closing, subject to the terms and conditions of such Allocable Shared Contract (such Liabilities, the “Shared Contract Liabilities”). All rights and Liabilities which arise under an Allocable 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 Retained Liabilities, as applicable. For purposes of determining the scope of the Shared Contract Rights and Shared Contract Liabilities, the rights and Liabilities under each Allocable Shared Contract shall be equitably allocated among (a) the Business, on the one hand, and (b) the newspapers or other businesses other than the Business that will continue to be owned by Seller or its Affiliates and other buyers of newspapers of Seller or its Affiliates, to the extent applicable, after the Closing, on the other hand, in accordance with the following equitable allocation principles:
(i) Buyer acknowledges that certain contractsany allocation set forth in the Allocable Shared Contract shall control;
(ii) if there is no allocation in the Allocable Shared Contract as described in clause (i) hereof, understandings or agreements to which then any allocation previously made by Seller or one its Affiliates in the ordinary course of business shall control;
(iii) if there is no allocation as described in clause (ii) hereof, then the quantifiable proportionate benefit to be received by Seller and Buyer after the Closing Date (to be determined by mutual good faith agreement of Seller and Buyer) shall control; and
(iv) if not quantifiable as described in clause (iii) hereof, then reasonable accommodation (to be determined by mutual good faith agreement of Seller and Buyer) shall control.
2.3.2 At the election of Seller and subject to any applicable Consents, such allocation may be effectuated by termination of the Allocable Shared Contract in its entirety and the execution of new Contracts or more by an assignment to and assumption by Buyer of the Shared Contract Rights and the Shared Contract Liabilities under such Allocable Shared Contract, provided, that the effectuation of such allocation by termination of the Allocable Shared Contract in its Subsidiaries entirety does not materially disadvantage Buyer. Except as set forth on Schedule 6.1.6, the completion of the documentation of any such termination and replacement or assignment is party contain terms not a condition to the Closing. As soon as practicable after the execution of this Agreement, Seller shall make appropriate requests to obtain, at the election of Seller, either Consents from appropriate third parties to assignment and assumption by Buyer of such Shared Contract Rights and Shared Contract Liabilities or reasonably comparable replacement or separated Contracts (each, a “Replacement Contract”) that are relevant to, are provide for the Shared Contract Rights and Shared Contract Liabilities for the benefit of and/or impose obligations on Buyer and the Business with the remaining rights and Liabilities for the benefit of Seller and its Subsidiaries with respect Affiliates, and Seller shall use commercially reasonable efforts to both obtain such Consents or Replacement Contracts as expeditiously as possible. Any requests for such Consents or Replacement Contracts shall include a request that Seller and its Affiliates be unconditionally released from all Liabilities relating to the Business Shared Contract Rights and one Shared Contract Liabilities attributable to the period after the Closing; provided, such releases shall not be a condition to the processing or more provision of Seller’s Other Businesses (such contracts, understandings Consents or Replacement Contracts. Seller shall be responsible for and arrangements being collectively referred pay all administrative or processing fees imposed by any Person pursuant to herein the terms of the relevant Allocable Shared Contract or otherwise as “Shared Contracts”)a condition to processing any Consent or Replacement Contract requests. Buyer acknowledges shall reasonably cooperate with Seller to obtain such Consents or Replacement Contracts. Nothing in this Section 2.3.2 shall require the expenditure or payment of any funds (other than in respect of normal and agrees that such Shared Contracts shall be addressed usual attorneys fees, administrative fees, processing fees, filing fees or other normal costs of doing business) or the giving of any other consideration by Seller or Buyer or any adjustment to the parties Purchase Price.
2.3.3 Except as set forth in this Section 8T.
(ii) Section 8T(ii) of the Seller Disclosure Letter (as amended after the date hereof with the agreement of on Schedule 6.1.6, Buyer and Seller) sets forth certain material Seller agree that obtaining the Consents or Replacement Contracts for the Allocable Shared Contracts under which, except as set forth in the Ancillary Agreements, Buyer, the members of the Paper Group (and their Subsidiaries) and the Business shall cease is not a condition to have any rights or obligations from and after the Closing. Seller acknowledges In the event that a Consent or Replacement Contract for an Allocable Shared Contract is not obtained by the Closing and agrees thatthe Closing occurs, Seller, in its sole discretion, may either assign the Shared Contract Rights and Shared Contract Liabilities arising under such Allocable Shared Contract to Buyer notwithstanding the absence of a Consent therefor or use commercially reasonable efforts to cooperate with Buyer in effecting a commercially reasonable arrangement permitted by Legal Rules and not inconsistent with such Allocable Shared Contract under which Buyer shall receive benefits under the Allocable Shared Contract corresponding to the Shared Contract Rights from and after the Closing, it and, to the extent of the benefits received, Buyer shall pay and perform Seller’s and its Subsidiaries shall be solely responsible for performance of Affiliates’ Liabilities arising under the Allocable Shared Contracts set forth on Section 8T(ii) of the Contract (other than Liabilities arising from a breach thereof by Seller Disclosure Letter and Buyer acknowledges and agrees that neither it nor or any of its Affiliates (including any member of prior to the Paper Group or any other Affiliate that owns assets of the BusinessClosing) shall have any rights or obligations under any of corresponding to the Shared Contracts except as set forth in the Ancillary Agreements.
(iii) Section 8T(iii) of the Seller Disclosure Letter (as amended after the date hereof with the agreement of Buyer and Seller) sets forth certain material Shared Contracts under which both the Business and Seller’s Other Businesses perform obligations, have liabilities and/or receive benefits (the “Ongoing Shared Contracts”). With respect to each Ongoing Shared Contract, from and after the date hereof until expiration or termination of such Ongoing Shared Contract, each of Seller and Buyer shall, at the request of the other, cooperate with each other to schedule discussions and participate in negotiations with the counterparty to, or obligor or obligee under, each such Ongoing Shared Contract regarding a split of such Ongoing Shared Contract that, as nearly as practicable, approximates the rights and obligations of the Business and Seller’s Other Businesses with respect to such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to such split; provided that in no event shall either Seller or Buyer be obligated to execute, deliver or (except to the extent executed and delivered by such Person) perform under, or be obligated to cause another Person to execute, deliver or (except to the extent executed and delivered by such Person) perform under, such split contract without such party’s prior written consent. For the avoidance of doubt, in no event shall the split of, or any similar action with respect to, any Ongoing Shared Contract be a condition to the obligations of any party to this Agreement.
(iv) To the extent that a split contract with respect to such Ongoing Shared Contract is not obtained prior to Closing, then Liabilities from and after the Closing until such Ongoing Shared Contract expires in accordance with its terms; provided, that Seller and its Affiliates shall not be liable or is terminated, have any further responsibility to Buyer for the extent permitted by law and, unless waived by Seller, to the extent otherwise permissible in light of the terms failure of such Ongoing Shared Contract, then Seller shall cause Seller’s Other Businesses and Buyer shall cause Buyer Sub, the members of the Paper Group, each of their respective Subsidiaries and the Business Consents or Replacement Contracts to perform obligations under each such Ongoing Shared Contract to which it is a party or bound and be obtained so long as Seller and Buyer shall cooperate with each other and use reasonable best efforts such that the applicable members of the Paper Group and their Subsidiaries shall perform the obligations under, and receive the benefits of, such Ongoing Shared Contracts, in each case in the manner set forth on Section 8T(iv) of the Seller Disclosure Letter (as amended after the date hereof with the consent of Buyer and Seller) or otherwise in a manner that as nearly as practicable approximates the obligations and benefits of the Business and Seller’s Other Businesses with respect to such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to Closing. In the event that, after the Closing, Buyer performs its obligations under an Ongoing Shared Contract that has not been split and Seller or one of its Subsidiaries receives benefits under such Ongoing Shared Contract that are attributable to the operations of the Business after the Closing Date, Seller shall pay over such benefits to Buyer. In the event that, after the Closing, Seller performs its obligations under an Ongoing Shared Contract that has not been split and Buyer or one of its Subsidiaries receives benefits that are attributable to the operation of one of Seller’s Other Businesses after Closing, Buyer shall pay over such benefits to Seller. Each of Buyer and Seller shall indemnify the other for Losses such party or its Affiliates suffer as a result of any breach of any Ongoing Shared Contract by such party.
(v) Buyer and Seller agree that, from and after the Closing, such party shall not, and shall cause its Affiliates not to, amend, waive, settle or compromise any material matter or claim related to any Ongoing Shared Contract without the prior written consent of the other. For all purposes of have complied with this Section 8T, upon an effective split of an Ongoing Shared Contract that each of Buyer and Seller has agreed to, such Ongoing Shared Contract shall be deemed terminated for purposes of this Section 8T.2.3.3 in connection therewith.
Appears in 1 contract
Shared Contracts. (a) Purchaser and the Sellers shall cooperate and use commercially reasonable efforts to cause each counterparty (the “Counterparty”) to each Shared Contract to enter into stand-alone arrangements (i) Buyer acknowledges between any of the Companies, Purchaser or its relevant Affiliate on the one hand, and the Counterparty on the other hand, in respect of either the provision of goods or services that certain contractsthe Business provided to the Counterparty on the one hand, understandings and the provision of goods or agreements services that the Counterparty provided to which the Business on the other hand, under such Shared Contract and (ii) between a Seller or its relevant Affiliate on the one hand, and the Counterparty on the other hand, in respect of the provision of the goods or more services that the Seller Group provided to the Counterparty in respect of its Subsidiaries is party contain the Retained Business under such Shared Contract on the one hand or the provision of the goods or services that the Counterparty provided to the Seller Group in respect of the Retained Business under such Shared Contract on the other hand, in each case, on terms that are relevant tosubstantially similar to those in existence on the date hereof in respect of those respective goods or services (such act, are for the benefit “Shared Contract Separation”); provided, however, that, except as required by Section 11.6 (Expenses), none of and/or impose obligations on Seller the Sellers, Purchaser or their respective Affiliates shall be required to take any Extraordinary Actions in connection with the foregoing. Purchaser and its Subsidiaries the Sellers shall coordinate communications and outreach activities with respect to both the Business Counterparties to effect the Shared Contract Separation.
(b) To the extent the Shared Contract Separation has not been completed in respect of any Shared Contract on or prior to the Closing or, in the case of contract that is a Deferred Build Engine Asset, on or prior to the date that such Contract is to be conveyed, transferred, assigned, assumed and one or more of Seller’s Other Businesses delivered to Purchaser pursuant to Section 5.14(c) (such contractsShared Contract, understandings and arrangements being collectively referred to herein as a “Stranded Shared ContractsContract”). Buyer acknowledges , then, from the Closing until the earliest of (x) completion of the Shared Contract Separation, (y) the expiration or termination of the Stranded Shared Contract in accordance with its terms (without any extensions or renewals thereof unless automatic or pre-determined extension or renewal is provided for therein in accordance with the terms thereof) and agrees (z) the date that such is the second (2nd) anniversary of the Closing Date, each of Purchaser and its Affiliates, on the one hand, and the Sellers and their Affiliates, on the other hand, shall (i) provide or cause to be provided to the other Parties all commercially reasonable assistance as is reasonably requested in connection with completing the Shared Contracts Contract Separation (provided that, except as required by Section 11.6 (Expenses), none of the Sellers, Purchaser or their respective Affiliates shall be addressed by the parties as set forth required to take any Extraordinary Actions in this Section 8T.
connection therewith) and (ii) Section 8T(ii) solely to the extent permitted by the terms of the Seller Disclosure Letter (as amended after applicable Stranded Shared Contract and applicable Law, use commercially reasonable efforts to cooperate in a reasonable Back-to-Back Arrangement; provided that, to the date hereof extent that any Transaction Agreement contemplates the terms of any Back-to-Back Arrangement with respect to any Stranded Shared Contract, the agreement of Buyer and Seller) sets forth certain material Shared Contracts under which, except as terms set forth in the Ancillary AgreementsTransaction Agreement shall govern with respect to any such Back-to-Back Arrangement. With respect to rights and Liabilities under or resulting from a given Stranded Shared Contract, Buyersuch rights and Liabilities shall, unless otherwise allocated pursuant to this Agreement or a written agreement between the members of Parties and the Paper Group (Counterparty to such Stranded Shared Contract, be allocated following the Closing from time to time between the Sellers and their Subsidiaries) Affiliates, on the one hand, and Purchaser and the Business shall cease Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received or to have any rights or obligations from and be received after the ClosingClosing by the Sellers and their Affiliates, on the one hand, or Purchaser and the Companies, on the other hand, under such Stranded Shared Contract. Seller acknowledges and agrees thatNotwithstanding the foregoing, from and after the Closing, it and its Subsidiaries following Closing each Party shall be solely responsible for performance any and all Liabilities to the extent arising out of the or relating to such Party’s (or its Affiliates’) breach of such Stranded Shared Contracts set forth on Section 8T(ii) of the Seller Disclosure Letter and Buyer acknowledges and agrees that neither it nor any of its Affiliates (including any member of the Paper Group or any other Affiliate that owns assets of the Business) shall have any rights or obligations under any of the Shared Contracts except as set forth in the Ancillary AgreementsContract.
(iiic) Section 8T(iii) of Purchaser further agrees that subject to the Seller Disclosure Letter (as amended after the date hereof Sellers’ compliance with the agreement terms of Buyer and Seller) sets forth certain material Shared Contracts under which both this Agreement, the Business and Seller’s Other Businesses perform obligations, have liabilities and/or receive benefits (the “Ongoing Shared Contracts”). With respect failure to each Ongoing obtain any Consent from a Counterparty to a Stranded Shared Contract, from and after complete the date hereof until expiration or termination of such Ongoing Shared Contract, each of Seller and Buyer shall, at the request of the other, cooperate with each other to schedule discussions and participate in negotiations with the counterparty to, or obligor or obligee under, each such Ongoing Shared Contract regarding Separation or to enter into a split of such Ongoing Shared Contract that, as nearly as practicable, approximates the rights and obligations of the Business and Seller’s Other Businesses with respect to such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to such split; provided that in no event Back-to-Back Arrangement shall either Seller or Buyer not be obligated to execute, deliver or (except a condition to the extent executed and delivered by such Person) perform underClosing, or be obligated to cause another Person to executeit being acknowledged, deliver or (except to the extent executed and delivered by such Person) perform under, such split contract without such party’s prior written consent. For for the avoidance of doubt, in no event that this sentence shall not limit the split of, or any similar action with respect to, any Ongoing Shared Contract be a condition to the obligations of any party to this Agreement.
(iv) To the extent that a split contract with respect to such Ongoing Shared Contract is not obtained prior to Closing, then from and after the Closing until such Ongoing Shared Contract expires or is terminated, to the extent permitted by law and, unless waived by Seller, to the extent otherwise permissible in light of the terms of such Ongoing Shared Contract, then Seller shall cause Seller’s Other Businesses and Buyer shall cause Buyer Sub, the members of the Paper Group, each of their respective Subsidiaries and the Business to perform obligations under each such Ongoing Shared Contract to which it is a party or bound and Seller and Buyer shall cooperate with each other and use reasonable best efforts such that the applicable members of the Paper Group and their Subsidiaries shall perform the obligations under, and receive the benefits of, such Ongoing Shared Contracts, in each case in the manner express conditions set forth on Section 8T(iv) of the Seller Disclosure Letter in Article 8 (as amended after the date hereof with the consent of Buyer and Seller) or otherwise in a manner that as nearly as practicable approximates the obligations and benefits of the Business and Seller’s Other Businesses with respect Conditions to such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior Obligations to Closing. In the event that, after the Closing, Buyer performs its obligations under an Ongoing Shared Contract that has not been split and Seller or one of its Subsidiaries receives benefits under such Ongoing Shared Contract that are attributable to the operations of the Business after the Closing Date, Seller shall pay over such benefits to Buyer. In the event that, after the Closing, Seller performs its obligations under an Ongoing Shared Contract that has not been split and Buyer or one of its Subsidiaries receives benefits that are attributable to the operation of one of Seller’s Other Businesses after Closing, Buyer shall pay over such benefits to Seller. Each of Buyer and Seller shall indemnify the other for Losses such party or its Affiliates suffer as a result of any breach of any Ongoing Shared Contract by such partyClose).
(v) Buyer and Seller agree that, from and after the Closing, such party shall not, and shall cause its Affiliates not to, amend, waive, settle or compromise any material matter or claim related to any Ongoing Shared Contract without the prior written consent of the other. For all purposes of this Section 8T, upon an effective split of an Ongoing Shared Contract that each of Buyer and Seller has agreed to, such Ongoing Shared Contract shall be deemed terminated for purposes of this Section 8T.
Appears in 1 contract
Sources: Purchase Agreement (At&t Inc.)
Shared Contracts. (a) With respect to any Shared Contracts listed on Schedule 6.3(a) of the Disclosure Schedule (each, a “Specified Shared Contract”), prior to the Closing, Sellers, on the one hand, and Buyer, on the other hand shall cooperate with each other and use their commercially reasonable efforts (i) to divide, modify or replicate (in whole or in part) the respective rights, obligations and liabilities relating to the Business under and in respect of such Specified Shared Contract, or (ii) to the extent the action contemplated in the foregoing clause (i) is not possible, novate the respective rights, obligations and liabilities relating to the Business under and in respect of such Specified Shared Contract (provided that this clause (ii) shall not apply to the extent such novation is not permissible under the relevant governing law of the applicable Contract or under other applicable Law), such that, effective as of the Closing, (A) Buyer acknowledges or its designated Affiliate is the beneficiary of the post-Closing rights, and is responsible for the post-Closing obligations and liabilities, related to that certain contractsportion of such Specified Shared Contract related solely to the operation or conduct of the Business (the “Business Portion”) (so that, understandings or agreements subsequent to which the Closing, Sellers and their Affiliates (other than the Company) shall have no post-Closing rights and no post-Closing obligations and liabilities with respect to the Business Portion of such Specified Shared Contract) and (B) a Seller or one or more of its Subsidiaries Affiliates (other than the Company) is party contain terms that are relevant to, are the beneficiary of the rights and is responsible for the benefit of and/or impose obligations on Seller and liabilities related to such Specified Shared Contract other than the Business Portion (the “Non-Business Portion”) (so that, subsequent to the Closing, Buyer and its Subsidiaries Affiliates shall have no rights, obligations or liabilities with respect to both the Non-Business Portion of such Specified Shared Contract). Any novation of any Specified Shared Contract shall be effectuated pursuant to a novation agreement, which shall be substantially in the form and substance attached hereto as Exhibit F (the “Form Novation Agreement”).
(b) If the Closing occurs before all Specified Shared Contracts are assigned or otherwise divided, modified or replicated pursuant to Section 6.3(a), Sellers and Buyer shall use commercially reasonable efforts and cooperate with each other in any mutually agreeable and lawful arrangement under which a Seller or one of its Controlled Affiliates will provide Buyer or its designated Affiliate the economic rights and benefits of the Business Portion of such Specified Shared Contract until the earliest of (i) the expiration of the then-current term, (ii) six (6) months following the Closing Date and one (iii) the termination of or more amendment to such Specified Shared Contract upon mutual agreement by the parties; provided that any early termination fees or similar fees incurred by any Seller or any of its Controlled Affiliates in connection with the termination or amendment of such Specified Shared Contract pursuant to this clause (iii) shall be borne by Buyer. Such arrangement may include subcontracting, sublicensing or subleasing to Buyer or its designated Affiliate of any and all rights of any Seller or any Seller’s Other Businesses applicable Controlled Affiliate under the Business Portion of such Specified Shared Contract to the extent not prohibited under such Specified Shared Contract.
(such contractsc) Notwithstanding anything to the contrary contained in this Agreement, understandings neither any Seller nor any of its Affiliates shall (i) be required to expend any money, (ii) commence or participate in any claim or Proceeding, (iii) incur liabilities or (iv) agree or consent to do any of the foregoing, in each case, in order to obtain any consent, assumption or release. Notwithstanding anything to the contrary herein, neither any Seller nor any of its Affiliates represents or warrants that any agreement to replace or otherwise split any Specified Shared Contract is obtainable from any third party, and arrangements being collectively referred to herein as “Shared Contracts”). Buyer acknowledges and agrees that such Shared Contracts for the avoidance of doubt, no representation, warranty or covenant of any Seller or the Company contained in this Agreement or the other Transaction Documents shall be addressed by breached or deemed breached, and no Closing Condition shall be deemed not satisfied, based on (A) the parties as set forth failure to obtain any Consent described in this Section 8T.6.3 or (B) any claim or Proceeding commenced or threatened by or on behalf of any Person arising out of, relating to or resulting from (1) the failure to obtain any Consent described in this Section 6.3 or (2) any arrangement between any Seller or Buyer entered into pursuant to Section 6.3(b).
(iid) Section 8T(ii) of the Seller Disclosure Letter (as amended after the date hereof with the agreement of Buyer and Seller) sets forth certain material Shared Contracts under which, except as set forth in the Ancillary Agreements, Buyer, the members of the Paper Group (and their Subsidiaries) and the Business shall cease to have any rights or obligations from and after the Closing. Seller acknowledges and agrees that, from From and after the Closing, it (i) Buyer shall indemnify and hold harmless each Seller and its Subsidiaries shall be solely responsible for performance Affiliates from and against all Losses arising from or relating to the Business Portion of the any Specified Shared Contracts set forth on Section 8T(iiContract and (ii) of the Seller Disclosure Letter and Buyer acknowledges and agrees that neither it nor any of its Affiliates (including any member of the Paper Group or any other Affiliate that owns assets of the Business) shall have any rights or obligations under any of the Shared Contracts except as set forth in the Ancillary Agreements.
(iii) Section 8T(iii) of the Seller Disclosure Letter (as amended after the date hereof with the agreement of Buyer and Seller) sets forth certain material Shared Contracts under which both the Business and Seller’s Other Businesses perform obligations, have liabilities and/or receive benefits (the “Ongoing Shared Contracts”). With respect to each Ongoing Shared Contract, from and after the date hereof until expiration or termination of such Ongoing Shared Contract, each of Seller and Buyer shall, at the request of the other, cooperate with each other to schedule discussions and participate in negotiations with the counterparty to, or obligor or obligee under, each such Ongoing Shared Contract regarding a split of such Ongoing Shared Contract that, as nearly as practicable, approximates the rights and obligations of the Business and Seller’s Other Businesses with respect to such Ongoing Shared Contract during Company shall not extend the term of the Ongoing Shared Contract prior to such split; provided that in no event shall either Seller or Buyer be obligated to execute, deliver or (except to the extent executed and delivered by such Person) perform under, or be obligated to cause another Person to execute, deliver or (except to the extent executed and delivered by such Person) perform under, such split contract without such party’s prior written consent. For the avoidance of doubt, in no event shall the split of, or any similar action with respect to, any Ongoing Shared Contract be a condition to the obligations of any party to this Agreement.
(iv) To the extent that a split contract with respect to such Ongoing Shared Contract is not obtained prior to Closing, then from and after the Closing until such Ongoing Shared Contract expires or is terminated, to the extent permitted by law and, unless waived by Seller, to the extent otherwise permissible in light of amend the terms of such Ongoing Shared Contract, then Seller shall cause Seller’s Other Businesses and Buyer shall cause Buyer Sub, the members of the Paper Group, each of their respective Subsidiaries and the Business to perform obligations under each such Ongoing any Shared Contract to which it is a party or bound and Seller and Buyer shall cooperate with each other and use reasonable best efforts such that the applicable members of the Paper Group and their Subsidiaries shall perform the obligations under, and receive the benefits of, such Ongoing Shared Contracts, in each case in the manner set forth on Section 8T(iv) of the Seller Disclosure Letter (as amended after the date hereof with the consent of Buyer and Seller) or otherwise in a manner that as nearly as practicable approximates the obligations and benefits would adversely affect any Seller or any of the Business and such Seller’s Other Businesses with respect to such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to Closing. In the event that, after the Closing, Buyer performs its obligations under an Ongoing Shared Contract that has not been split and Seller or one of its Subsidiaries receives benefits under such Ongoing Shared Contract that are attributable to the operations of the Business after the Closing Date, Seller shall pay over such benefits to Buyer. In the event that, after the Closing, Seller performs its obligations under an Ongoing Shared Contract that has not been split and Buyer or one of its Subsidiaries receives benefits that are attributable to the operation of one of Seller’s Other Businesses after Closing, Buyer shall pay over such benefits to Seller. Each of Buyer and Seller shall indemnify the other for Losses such party or its Affiliates suffer as a result of any breach of any Ongoing Shared Contract by such party.
(v) Buyer and Seller agree that, from and after the Closing, such party shall not, and shall cause its Affiliates not to, amend, waive, settle or compromise any material matter or claim related to any Ongoing Shared Contract without the Sellers’ prior written consent of the other. For all purposes of this Section 8T, upon an effective split of an Ongoing Shared Contract that each of Buyer and Seller has agreed to, such Ongoing Shared Contract shall be deemed terminated for purposes of this Section 8T.consent.
Appears in 1 contract
Sources: Share Purchase Agreement (Spirit AeroSystems Holdings, Inc.)
Shared Contracts. (ia) Buyer acknowledges The Parties acknowledge that certain contracts, understandings or agreements to which Seller or one or more of its Subsidiaries is party contain terms that are relevant to, are for the benefit of and/or impose obligations on Seller Advisor Parent and its Subsidiaries with respect (including the Advisor) are parties to both certain of the Business and one or more of Seller’s Other Businesses Identified Contracts (such contractscollectively, understandings and arrangements being collectively referred to herein as the “Shared Contracts”). Buyer acknowledges ) that relate in part to both (i) the operations or conduct of the business of the Target Companies and agrees that such Shared Contracts shall be addressed by the parties as set forth in this Section 8T.
(ii) Section 8T(ii) the operations or conduct of the Seller Disclosure Letter (as amended after the date hereof with the agreement business of Buyer and Seller) sets forth certain material Shared Contracts under which, except as set forth in the Ancillary Agreements, Buyer, the members of the Paper Group (and their Subsidiaries) and the Business shall cease to have any rights or obligations from and after the Closing. Seller acknowledges and agrees that, from and after the Closing, it Advisor Parent and its Subsidiaries shall be solely responsible for performance other than the operations or conduct of business of the Shared Contracts set forth on Section 8T(ii) of the Seller Disclosure Letter and Buyer acknowledges and agrees that neither it nor any of its Affiliates (including any member of the Paper Group or any other Affiliate that owns assets of the Business) shall have any rights or obligations under any of the Shared Contracts except as set forth in the Ancillary Agreements.
(iii) Section 8T(iii) of the Seller Disclosure Letter (as amended after the date hereof with the agreement of Buyer and Seller) sets forth certain material Shared Contracts under which both the Business and Seller’s Other Businesses perform obligations, have liabilities and/or receive benefits Target Companies (the “Ongoing Shared ContractsRetained Businesses”). With respect to each Ongoing Shared Contract, from Advisor Parent and after the date hereof until expiration or termination of such Ongoing Shared Contract, each of Seller and Buyer shall, at the request of the other, cooperate with each other to schedule discussions and participate in negotiations with the counterparty to, or obligor or obligee under, each such Ongoing Shared Contract regarding a split of such Ongoing Shared Contract that, as nearly as practicable, approximates the rights and obligations of the Business and Seller’s Other Businesses with respect to such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to such split; provided that in no event shall either Seller or Buyer be obligated to execute, deliver or (except to the extent executed and delivered by such Person) perform under, or be obligated to cause another Person to execute, deliver or (except to the extent executed and delivered by such Person) perform under, such split contract without such party’s prior written consent. For the avoidance of doubt, in no event shall the split of, or any similar action with respect to, any Ongoing Shared Contract be a condition to the obligations of any party to this Agreement.
(iv) To the extent that a split contract with respect to such Ongoing Shared Contract is not obtained prior to Closing, then from and after the Closing until such Ongoing Shared Contract expires or is terminated, to the extent permitted by law and, unless waived by Seller, to the extent otherwise permissible in light of the terms of such Ongoing Shared Contract, then Seller shall cause Seller’s Other Businesses and Buyer shall cause Buyer Sub, the members of the Paper Group, each of their respective Subsidiaries and the Business to perform obligations under each such Ongoing Shared Contract to which it is a party or bound and Seller and Buyer HTI shall cooperate with each other and use their respective commercially reasonable best efforts such that prior to the applicable members of the Paper Group and their Subsidiaries shall perform the obligations under, and receive the benefits of, such Ongoing Closing (i) to cause each Shared Contracts, in each case in the manner set forth on Section 8T(iv) of the Seller Disclosure Letter (as amended after the date hereof with Contract to be apportioned including by obtaining the consent of Buyer and Seller) such counterparty to enter into a new Contract or otherwise amendment, or splitting or assigning in a manner that relevant part such Shared Contract), effective as nearly as practicable approximates the obligations and benefits of the Business and Seller’s Other Businesses with respect to such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to Closing. In the event that, after the Closing, Buyer performs between the Target Companies, on the one hand, and Advisor Parent and its Subsidiaries other than the Target Companies, on the other hand, pursuant to which Advisor Parent and its Subsidiaries other than the Target Companies will assume all of the rights and obligations under an Ongoing such Shared Contract that has not been split relate to the Retained Businesses, on the one hand, and Seller or one the Advisor will assume all of its Subsidiaries receives benefits the rights and obligations under such Ongoing Shared Contract that are attributable relate to the operations business of the Business Target Companies, on the other hand, and (ii) in the case of Advisor Parent and its Subsidiaries other than the Target Companies, to cause the applicable counterparty to release the Target Companies, as applicable, from the obligations of Advisor Parent and its Subsidiaries other than the Target Companies arising after the Closing DateDate under the portion of the Shared Contract apportioned to Advisor Parent and its Subsidiaries other than the Target Companies and, Seller shall pay over such benefits in the case of the Target Companies, to Buyer. In cause the event that, 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, Seller performs its obligations Closing Date under an Ongoing the portion of the Shared Contract that has not been split and Buyer or one of its Subsidiaries receives benefits that are attributable apportioned to the operation of one of Seller’s Other Businesses after ClosingTarget Companies. Notwithstanding the foregoing, Buyer shall pay over such benefits to Seller. Each of Buyer and Seller shall indemnify the other for Losses such party or its Affiliates suffer as a result of any breach of any Ongoing Shared Contract by such party.
(v) Buyer and Seller agree that, from and after the Closing, such party Advisor Parent shall not, and shall cause ensure that its Affiliates not todo not, enter into a new contract, or amend, waivesplit, settle assign or compromise terminate any material matter Shared Contract, make any payment or claim related to grant any Ongoing concession for the purpose of entering into a new Contract, or amending, splitting, assigning or terminating any Shared Contract Contract, in each case, without the prior written consent of HTI. With respect to any Shared Contract for which the other. For all purposes of arrangements described in this Section 8T6.4(a) could not be entered into prior to the Closing, upon an effective split 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 an Ongoing any costs and expenses actually incurred and paid by Advisor Parent to the counterparty under such Shared Contract that each in proportion to the amount of Buyer services provided by Advisor Parent to HTI and Seller has agreed to, the Target Companies as compared to the total amount of services paid for by Advisor Parent under such Ongoing Shared Contract during such transitional period.
(b) From and after the Closing, (x) HTI shall be deemed terminated for purposes indemnify and hold harmless Advisor Parent and its Subsidiaries against all Losses arising from or relating to the portion of this Section 8T.any 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 apportioned to Advisor Parent and its Subsidiaries other than the Target Companies and (z) HTI and the Target Companies shall not 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 its 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. (ia) Buyer acknowledges that certain contracts, understandings or agreements With respect to which Seller or one or more of its Subsidiaries is party contain terms that are relevant Shared Contractual Liabilities pursuant to, are for under or relating to a given Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or any Ancillary Agreement, be allocated between VPI or any of the benefit of and/or impose obligations Retained Subsidiaries (as specified by VPI), on Seller the one hand, and Buyer and its Subsidiaries with respect to both Subsidiaries, on the Business and one or more other hand, based on the relative proportions of Seller’s Other Businesses total benefit received (such contracts, understandings and arrangements being collectively referred to herein as “Shared Contracts”). Buyer acknowledges and agrees that such Shared Contracts shall be addressed by over the parties as set forth in this Section 8T.
(ii) Section 8T(ii) of the Seller Disclosure Letter (as amended after the date hereof with the agreement of Buyer and Seller) sets forth certain material Shared Contracts under which, except as set forth in the Ancillary Agreements, Buyer, the members of the Paper Group (and their Subsidiaries) and the Business shall cease to have any rights or obligations from and after the Closing. Seller acknowledges and agrees that, from and after the Closing, it and its Subsidiaries shall be solely responsible for performance entire term of the Shared Contracts set forth Contract) by VPI and the Retained Subsidiaries, on Section 8T(iithe one hand, or Buyer and its Subsidiaries, on the other hand, under the relevant Shared Contract. Notwithstanding the foregoing, each of VPI and Buyer shall be responsible for any or all Liabilities arising out of or resulting from its (or its respective Subsidiaries') breach of the Seller Disclosure Letter and relevant Shared Contract to which this Section 7.12 otherwise pertains.
(b) If VPI or any Retained Subsidiary, on the one hand, or Buyer acknowledges and agrees that neither it nor or any of its Affiliates (including Subsidiaries, on the other hand, receives any member of the Paper Group benefit or any other Affiliate that owns assets of the Business) shall have any rights or obligations payment under any of Shared Contract which was intended for the Shared Contracts except as set forth in other party, VPI and Buyer will use their respective reasonable endeavors to, and to cause their respective Subsidiaries to, deliver, transfer or otherwise afford such benefit or payment to the Ancillary Agreementsother party.
(iiic) Section 8T(iii) of the Seller Disclosure Letter (as amended after the date hereof with the agreement of Buyer and Seller) sets forth Post Closing, certain material Shared Contracts under used in the WEEMEA Business, which both are identified in the Business and Seller’s Other Businesses perform obligations's Disclosure Letter, have liabilities and/or receive benefits (the “Ongoing Shared Contracts”). With respect to each Ongoing Shared Contract, from and after the date hereof until expiration or termination of such Ongoing Shared Contract, each of Seller and Buyer shall, at the request of the other, cooperate with each other to schedule discussions and participate in negotiations with the counterparty to, or obligor or obligee under, each such Ongoing Shared Contract regarding a split of such Ongoing Shared Contract that, as nearly as practicable, approximates the rights and obligations of the Business and Seller’s Other Businesses with respect to such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to such split; provided that in no event shall either Seller or Buyer be obligated to execute, deliver or (except to the extent executed and delivered sub-licensed by such Person) perform under, or be obligated to cause another Person to execute, deliver or (except to the extent executed and delivered by such Person) perform under, such split contract without such party’s prior written consent. For the avoidance of doubt, in no event shall the split of, VPI or any similar action with respect to, any Ongoing Shared Contract be a condition to the obligations of any party to this Agreement.
(iv) To the extent that a split contract with respect to such Ongoing Shared Contract is not obtained prior to Closing, then from and after the Closing until such Ongoing Shared Contract expires or is terminatedits Subsidiaries, to the extent permitted by law and, unless waived by Sellerpermitted, to the extent otherwise permissible relevant WEEMEA Company or Subsidiary of WEEMEA Company, as determined by VPI in light of the terms of such Ongoing Shared Contract, then Seller shall cause Seller’s Other Businesses and Buyer shall cause Buyer Sub, the members of the Paper Group, each of their respective Subsidiaries and the Business to perform obligations under each such Ongoing Shared Contract to which it is a party or bound and Seller and Buyer shall cooperate with each other and use reasonable best efforts such that the applicable members of the Paper Group and their Subsidiaries shall perform the obligations under, and receive the benefits of, such Ongoing Shared Contracts, in each case in the manner set forth on Section 8T(iv) of the Seller Disclosure Letter (as amended after the date hereof with the consent of Buyer and Seller) or otherwise in a manner that as nearly as practicable approximates the obligations and benefits of the Business and Seller’s Other Businesses with respect to such Ongoing Shared Contract during the term of the Ongoing Shared Contract prior to Closing. In the event that, after the Closing, Buyer performs its obligations under an Ongoing Shared Contract that has not been split and Seller or one of its Subsidiaries receives benefits under such Ongoing Shared Contract that are attributable to the operations of the Business after the Closing Date, Seller shall pay over such benefits to Buyer. In the event that, after the Closing, Seller performs its obligations under an Ongoing Shared Contract that has not been split and Buyer or one of its Subsidiaries receives benefits that are attributable to the operation of one of Seller’s Other Businesses after Closing, Buyer shall pay over such benefits to Seller. Each of Buyer and Seller shall indemnify the other for Losses such party or its Affiliates suffer as a result of any breach of any Ongoing Shared Contract by such partysole discretion.
(vd) Buyer and Seller agree that, from and after the Closing, such party shall not, and shall cause its Affiliates not to, amend, waive, settle or compromise any material matter or claim related to any Ongoing Shared Contract without the prior written consent of the other. For all purposes of As used in this Section 8T7.12, upon an effective split of an Ongoing Shared Contract that each of Buyer and Seller has agreed to, such Ongoing Shared Contract Buyer's Subsidiaries shall be deemed terminated for purposes of this Section 8T.include the WEEMEA Companies.
Appears in 1 contract
Sources: Acquisition Agreement (Valeant Pharmaceuticals International)