Common use of Transition Issues Clause in Contracts

Transition Issues. (a) Although title to the Assets, including the Transferred Software, shall pass to Buyer at the First Closing, Sellers shall continue to provide Buyer, Zone Trading, their respective Affiliates and (subject to Section 4.14) the Related Trading Group with access to the Gr8Trade System during the Transition Period, with no material diminution in services from those currently provided to Zone Trading and the Related Trading Group, on substantially the same basis as at present and at no increase in cost to Buyer, Zone Trading or the Related Trading Group except as may be expressly set forth herein. During the Transition Period, the pricing provisions (but not the exclusivity provisions) of Section 3.1 of the Execution Agreement, and the support provisions of Section 4.3 of each of the License Agreements, shall continue to apply. Without limiting the foregoing, during the Transition Period, Sellers shall provide (or continue to provide) to Buyer, Zone Trading and the Related Trading Group all resources for the operation of the Gr8Trade System and the use thereof by Buyer, Zone Trading and the Related Trading Group including equipment leases, software licenses, support, telecommunications lines, data feeds, order-entry facilities, utilities, hardware and software maintenance and repair, rent and parking for facility leases and any other matters set forth on Schedule 4.12(a). (b) During the Transition Period, Sellers shall (i) transfer that portion of the Assets (and any additional assets that Buyer and Sellers mutually agree upon) that Buyer designates in writing are to be transferred to one or more new locations in Austin, Texas to such location(s) in accordance with the obligations and requirements set forth in Schedule 4.12(b) attached hereto, and (ii) transfer that portion of the Assets (and any additional assets that Buyer and Sellers mutually agree upon) that Buyer designates in writing are to be transferred to or retained at Sellers’ Harborside Financial Center in Jersey City, New Jersey (the “HFC Data Center”) to separate, segregated cabinets within the HFC Data Center in accordance with the Co-Location Agreement. Such transfers shall include the connection of market-data lines and order-entry lines and such other activities as may be described in (x) the Co-Location Agreement (with respect to the portions of the Assets (and any additional assets) to be located at the HFC Data Center), (y) Schedule 4.12(b) (with respect to the portions of the Assets (and any additional assets) to be located at one or more Austin locations) or (z) Schedule 4.12(b) (with respect to all such Assets wherever located) or as otherwise agreed to in writing among Buyer, Zone Trading and Sellers. Sellers shall use commercially reasonable efforts to utilize their own employees for such activities. Sellers shall cooperate with Buyer and its agents and contractors (including any provider of an Austin data center) in connection with such matters. Sellers shall use commercially reasonable efforts to minimize any disruption to the Gr8Trade System in connection with the relocation of any of the Assets to the Austin data center. (c) Except as provided in the Co-Location Agreement, Sellers hereby waive any right to or interest in any warehouseman’s lien, carrier’s lien or any other Lien against any of the Assets or additional assets held by any Seller on Buyer’s behalf during the Transition Period (collectively, the “Transition Assets”), whether such Lien arises by operation of law, in equity or otherwise, and to the extent such Lien or rights are non-waivable, Sellers covenant not to ▇▇▇ and agree not to assert any such non-waivable Lien or right. Without limitation of Section 9.6 hereof, Sellers shall promptly execute and deliver to Buyer such further documents and take or cause to be taken such further actions as Buyer may reasonably request from time to time in order to carry out more effectively the intent and purpose of this Section 4.12, including the execution and delivery of appropriate notice and/or financing statements to protect fully Buyer’s interest in the Transition Assets in accordance with the Uniform Commercial Code or other Applicable Law. Buyer is authorized to file one or more Uniform Commercial Code financing statements without the signature of Sellers or signed by Buyer as attorney-in-fact for Sellers. (d) Sellers shall be liable for repair and/or replacement costs relating to the Transition Assets in the event of any loss, damage or destruction to the Transition Assets caused by the gross negligence or willful misconduct of any Seller or any of their agents or representatives If at any time any Seller becomes aware that any of the Transition Assets have been lost, damaged, destroyed or come into the possession of a third party and such possession is not in accordance with this Agreement, Sellers shall provide prompt notice of such event to Buyer. (e) During the Transition Period, Sellers shall pay all reasonable recurring costs and expenses associated with, except as expressly set forth herein, the operational infrastructure of the Gr8Trade System and the use thereof by Buyer, Zone Trading and the Related Trading Group, including compensation, benefits and expenses for Sellers’ or their Affiliates’ employees (other than any costs and expenses associated with any Transferred Employee after such Employee’s Employee Transition Date, except as provided in Section 5.2(c)). During the Transition Period, Buyer shall pay all non-recurring costs and expenses related to the transition of the Assets from Sellers to Buyer, including all reasonable third-party costs that are necessary in connection with the transfer of equipment; provided, that such third-party costs are approved in writing by Buyer prior to any commitment being made with the relevant third party. Subject to this Section 4.2(c), Buyer shall also pay any costs and expenses related to the licensing of any software that is not included in the Assets but that Buyer elects to use in connection with the Assets. (f) Following the Second Closing, Sellers shall allow Buyer and Zone Trading to continue to use the HFC Data Center as a secondary site for the Gr8Trade System, and shall provide certain other services, pursuant to the Co-Location Agreement. The parties agree that Buyer and Zone Trading shall establish an Austin data center that shall be the primary data center for the operation of the Gr8Trade System by Buyer and Zone Trading. HFC Data Center shall serve as a fully redundant and concurrently running secondary data center; provided, however, that Sellers shall have no obligations in connection with the use by Buyer and Zone Trading of the HFC Data Center other than those pursuant to the Co-Location Agreement. (g) If, following the Second Closing, Buyer determines it needs access to additional telecommunications lines at the HFC Data Center in connection with the operation of the Assets, Sellers and Buyer shall use commercially reasonable efforts to enter into an arrangement pursuant to which (a) either Buyer or Zone Trading will be granted the use of such lines on a shared-services basis with any Seller (with Buyer or Zone Trading responsible for a pro rata portion of the cost of any such shared line to the third-party provider thereof), or (b) such lines will be transferred to either Buyer or Zone Trading on a fully dedicated basis (provided, that if Buyer is not contracting directly with any such third-party provider, such lines shall be made available by such Seller to Buyer with no ▇▇▇▇-up by such Seller or its Affiliates of the cost of such lines). (h) During the Transition Period, and continuing until two (2) years after the Second Closing Date, Buyer, Zone Trading and their respective Affiliates shall have access to Smart Router through the Transferred Software (or any successor to the Transferred Software that may be implemented by Buyer and certified by Sellers for use with Smart Router, such certification to not be unreasonably withheld or conditioned), including the ability to connect and execute utilizing Smart Router by the Transferred Software (or any successor to the Transferred Software that may be implemented by Buyer and so certified by Sellers for use with Smart Router). (i) Upon the expiration of the Transition Period, and except as may otherwise be provided in the Co-Location Agreement with respect to the mutual obligations of the parties after the Transition Period, (i) Buyer’s obligation to pay any Seller or any one or more of their respective Affiliates for any transition services or access to or support of any portion of the Gr8Trade System under clauses (a), (b) or (e) of this Section 4.12 shall terminate (other than payment for such services rendered prior to the termination of the Transition Period), and (ii) Sellers’ obligation to provide such transition services or access to and support of the Gr8Trade System under clauses (a), (b) or (e) of this Section 4.12 shall terminate. (j) Except as otherwise may be provided in the Co-Location Agreement, the covenants of the parties contained in clauses (c) and (d) of this Section 4.12 shall terminate six (6) months after the termination of the Transition Period.