Common use of Customer Contracts Clause in Contracts

Customer Contracts. (a) To the extent permissible under the Antitrust Laws, a list, as of June 2019, of each of the Customer Contracts setting forth the name of the Customer, rent commencement date (if it has not yet occurred), current expiration date (accounting for any expansion and termination rights that have been exercised, acknowledged or actioned), unexercised and unexpired expansion options, capacity in kilowatts and monthly revenue (for the month of June 2019) is set forth in Section 3.22(a) of the Company Letter (the “Customer Contract Spreadsheet”). The foregoing information contained in the Customer Contract Spreadsheet is accurate and complete in all material respects as of the date hereof other than changes that have occurred since June 30, 2019 resulting from the conduct of business by the Company and its Subsidiaries in the ordinary course of business consistent with past practice and, with respect to changes occurring pursuant to Service Orders, none of which was a Prohibited Service Order. Other than the rights of Customers under the Customer Contracts and the rights of Landlords under Company Property Leases, (i) there are no leases, subleases, licenses, colocation agreements or other documents evidencing the right of any Person (other than the Company and its Subsidiaries) to use or occupy space or equipment or obtain services in or on any of the Real Property nor (ii) to the knowledge of the Company, is any Person other than the Company and its Subsidiaries, using or occupying space or equipment or obtaining other services in or on any of the Real Property. (b) No Customer Contract contains any purchase option or other right to acquire any property of the Company or any of its Subsidiaries that is, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole. (c) There is no existing material default or breach by, no event has occurred that with notice or lapse of time or both would constitute a material default or breach by, and none of the Company or any of its Subsidiaries has received any notice alleging any material default or breach by, the Company or any of its Subsidiaries under any Material Customer Contract. To the knowledge of the Company, (i) there is no material default, and no event has occurred that with notice or lapse of time or both would constitute a material default, by (A) any Customer under a Material Customer Contract, or (B) any other Customer under a Customer Contract except where such defaults, in the aggregate, involve an amount in dispute of less than €2,000,000, (ii) no service issue or other event has occurred in the twelve (12) month period ended June 30, 2019 which would entitle any Customer to a credit or offset against its obligations to pay rent or other revenues in an amount which exceeds €2,000,000 in the aggregate and (iii) each Material Customer Contract is valid, binding and enforceable in all material respects with respect to the Company or one of its Subsidiaries, on the one hand, and the other parties thereto, on the other hand, in accordance with its terms, subject to the Enforceability Exceptions, and there is no Action, voluntary or involuntary, pending against any party to a Material Customer Contract under any section or sections of any bankruptcy or insolvency law. Neither the Company nor any of its Subsidiaries has received notice to terminate, not renew or challenge the validity or enforceability of any Material Customer Contract.

Customer Contracts. Section 1 of Schedule 3.23(a), sets forth a true, ------------------ --------- ---------------- complete and correct list of all executory Contracts providing for the sale, lease or rental of products and services of the Business. Except as set forth on Section 2 of Schedule 3.23(a), all such Contracts also relate to the sale of --------- ---------------- products and services of the Selling Entities not included within the Business (a) To such Contracts, other than those Contracts identified on such Section 2 which --------- are being assigned to the extent permissible under Acquiring Entities, are referred to as the Antitrust Laws"Customer Contracts"). As a result, a list, as of June 2019, of each of the Customer Contracts setting forth are not being assigned by the name Selling Entities to the Acquiring Entities but the Acquiring Entities shall be entitled to the rights of the CustomerSelling Entities under such Customer Contracts pursuant to the provisions of Section 2.11 hereof. The enforceability of each such Customer Contract and the rights and benefits of the Selling Entities thereunder will not be affected by the execution and delivery of this Agreement or any of the other agreements contemplated hereby, rent commencement date (if it has not yet occurred)the performance by the parties of their obligations hereunder and thereunder or the consummation of the transactions contemplated hereby and thereby, current expiration date (accounting other than as specifically provided for any expansion and termination rights that have been exercised, acknowledged or actioned), unexercised and unexpired expansion options, capacity in kilowatts and monthly revenue (for the month Section 2.11 hereof. Each Contract identified on Section 2 of June 2019Schedule 3.23(a) is set assignable --------- ---------------- (and will be assigned and transferred) by the respective Selling Entity to the appropriate Acquiring Entity pursuant to the transactions contemplated hereby without requiring any payment to, or Consent from, any Person or any waiting period, payment of any charge, fee or expense or any notice to any Person. Section 3 of Schedule 3.23(a) sets forth in Section 3.22(a) of the Company Letter (the “Customer Contract Spreadsheet”). The foregoing information contained in the Customer Contract Spreadsheet is accurate a true and complete in all material respects correct list as of the date --------- ---------------- hereof other than changes of all Customer Contracts, including, without limitation, any software warranty upgrade agreements, under which a customer has prepaid a Selling Entity for products or maintenance services ("Prepaid Maintenance Contracts"). The Selling Entities will update the schedules set forth in this Section 3.23 prior to an applicable Closing. The Selling Entities shall take all action necessary so that have occurred since June 30, 2019 resulting from the conduct current term of business by the Company and its Subsidiaries in the ordinary course of business consistent with past practice and, with respect to changes occurring pursuant to Service Orders, none of which was a Prohibited Service Order. Other than the rights of Customers any Customer Contract shall not be extended either under the Customer Contracts and the rights terms thereof or by operation of Landlords under Company Property Leases, (i) there are no leases, subleases, licenses, colocation agreements or other documents evidencing the right of any Person (other than the Company and its Subsidiaries) to use or occupy space or equipment or obtain services in or on any of the Real Property nor (ii) to the knowledge of the Company, is any Person other than the Company and its Subsidiaries, using or occupying space or equipment or obtaining other services in or on any of the Real Property. (b) law. No Customer Contract contains any purchase option or other right to acquire any property has a current term ending after the one-year anniversary of the Company or any of its Subsidiaries that is, individually or in date hereof (except such Customer Contracts as may be terminated by the aggregate, material Selling Entities prior to the Company and its Subsidiaries, taken as a whole. (c) There is no existing material default or breach by, no event has occurred that with notice or lapse of time or both would constitute a material default or breach by, and none of the Company or any of its Subsidiaries has received any notice alleging any material default or breach by, the Company or any of its Subsidiaries under any Material Customer Contract. To the knowledge of the Company, (i) there is no material default, and no event has occurred that with notice or lapse of time or both would constitute a material default, by (A) any Customer under a Material Customer Contract, or (B) any other Customer under a Customer Contract except where such defaults, in the aggregate, involve an amount in dispute of less than €2,000,000, (ii) no service issue or other event has occurred in the twelve (12) month period ended June 30, 2019 which would entitle any Customer to a credit or offset against its obligations to pay rent or other revenues in an amount which exceeds €2,000,000 in the aggregate and (iii) each Material Customer Contract is valid, binding and enforceable in all material respects with respect to the Company or one of its Subsidiaries, on the one handdate, and the other parties thereto, on Selling Entities agree to so terminate any such contract before such date at the other hand, in accordance with its terms, subject to the Enforceability Exceptions, and there is no Action, voluntary or involuntary, pending against any party to a Material Customer Contract under any section or sections request of any bankruptcy or insolvency law. Neither the Company nor any of its Subsidiaries has received notice to terminate, not renew or challenge the validity or enforceability of any Material Customer ContractUSI).

Customer Contracts. (a) To the extent permissible under the Antitrust Laws, a list, as of June 2019, of each of the Customer Contracts setting forth the name of the Customer, rent commencement date (if it has not yet occurred), current expiration date (accounting for any expansion and termination rights that have been exercised, acknowledged or actioned), unexercised and unexpired expansion options, capacity in kilowatts and monthly revenue (for the month of June 2019) is set forth in Section 3.22(a) of the Company Letter (the “Customer Contract Spreadsheet”). The foregoing information contained in the Customer Contract Spreadsheet is accurate and complete in all material respects as of the date hereof other than changes that have occurred since June 30, 2019 resulting from the conduct of business by the Company and its Subsidiaries in the ordinary course of business consistent with past practice and, with respect to changes occurring pursuant to Service Orders, none of which was a Prohibited Service Order. Other than the rights of Customers under the Customer Contracts and the rights of Landlords under Company Property Leases, (i) there are no leases, subleases, licenses, colocation agreements or other documents evidencing the right of any Person (other than the Company and its Subsidiaries) to use or occupy space or equipment or obtain services in or on any of the Real Property nor (ii) to the knowledge of the Company, is any Person other than the Company and its Subsidiaries, using or occupying space or equipment or obtaining other services in or on any of the Real Property. (b) No Customer Contract contains any purchase option or other right to acquire any property of the Company or any of its Subsidiaries that is, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole.. Table of Contents (c) There is no existing material default or breach by, no event has occurred that with notice or lapse of time or both would constitute a material default or breach by, and none of the Company or any of its Subsidiaries has received any notice alleging any material default or breach by, the Company or any of its Subsidiaries under any Material Customer Contract. To the knowledge of the Company, (i) there is no material default, and no event has occurred that with notice or lapse of time or both would constitute a material default, by (A) any Customer under a Material Customer Contract, or (B) any other Customer under a Customer Contract except where such defaults, in the aggregate, involve an amount in dispute of less than €2,000,000, (ii) no service issue or other event has occurred in the twelve (12) month period ended June 30, 2019 which would entitle any Customer to a credit or offset against its obligations to pay rent or other revenues in an amount which exceeds €2,000,000 in the aggregate and (iii) each Material Customer Contract is valid, binding and enforceable in all material respects with respect to the Company or one of its Subsidiaries, on the one hand, and the other parties thereto, on the other hand, in accordance with its terms, subject to the Enforceability Exceptions, and there is no Action, voluntary or involuntary, pending against any party to a Material Customer Contract under any section or sections of any bankruptcy or insolvency law. Neither the Company nor any of its Subsidiaries has received notice to terminate, not renew or challenge the validity or enforceability of any Material Customer Contract.

Customer Contracts. Section 1 of Schedule 3.23(a), sets forth a true, complete and correct list of all executory Contracts providing for the sale, lease or rental of products and services of the Business. Except as set forth on Section 2 of Schedule 3.23(a), all such Contracts also relate to the sale of products and services of the Selling Entities not included within the Business (a) To such Contracts, other than those Contracts identified on such Section 2 which are being assigned to the extent permissible under Acquiring Entities, are referred to as the Antitrust Laws"Customer Contracts"). As a result, a list, as of June 2019, of each of the Customer Contracts setting forth are not being assigned by the name Selling Entities to the Acquiring Entities but the Acquiring Entities shall be entitled to the rights of the CustomerSelling Entities under such Customer Contracts pursuant to the provisions of Section 2.11 hereof. The enforceability of each such Customer Contract and the rights and benefits of the Selling Entities thereunder will not be affected by the execution and delivery of this Agreement or any of the other agreements contemplated hereby, rent commencement date (if it has not yet occurred)the performance by the parties of their obligations hereunder and thereunder or the consummation of the transactions contemplated hereby and thereby, current expiration date (accounting other than as specifically provided for any expansion and termination rights that have been exercised, acknowledged or actioned), unexercised and unexpired expansion options, capacity in kilowatts and monthly revenue (for the month Section 2.11 hereof. Each Contract identified on Section 2 of June 2019Schedule 3.23(a) is set assignable (and will be assigned and transferred) by the respective Selling Entity to the appropriate Acquiring Entity pursuant to the transactions contemplated hereby without requiring any payment to, or Consent from, any Person or any waiting period, payment of any charge, fee or expense or any notice to any Person. Section 3 of Schedule 3.23(a) sets forth in Section 3.22(a) of the Company Letter (the “Customer Contract Spreadsheet”). The foregoing information contained in the Customer Contract Spreadsheet is accurate a true and complete in all material respects correct list as of the date hereof other than changes of all Customer Contracts, including, without limitation, any software warranty upgrade agreements, under which a customer has prepaid a Selling Entity for products or maintenance services ("Prepaid Maintenance Contracts"). The Selling Entities will update the schedules set forth in this Section 3.23 prior to an applicable Closing. The Selling Entities shall take all action necessary so that have occurred since June 30, 2019 resulting from the conduct current term of business any Customer Contract shall not be extended either under the terms thereof or by operation of law. No Customer Contract has a current term ending after the one-year anniversary of the date hereof (except such Customer Contracts as may be terminated by the Company Selling Entities prior to such date, and its Subsidiaries in the ordinary course Selling Entities agree to so terminate any such contract before such date at the request of USI). (b) Distributor, Reseller and Business Partner Contracts. Schedule 3.23(b) sets forth a true, complete and correct list of all distributor, reseller and business consistent with past practice andpartner agreements related to the Business (the "Distributor Contracts"), with respect to changes occurring pursuant to Service Orders, none all of which was a Prohibited Service Orderas of the date of this Agreement also relate to products and services of the Selling Entities not included within the Business. Other than Except as may be modified by the rights of Customers under the Customer amendments contemplated by Section 2.12 and except as set forth on Schedule 3.23(b), all Distributor Contracts and the rights of Landlords under Company Property Leases, (i) there are no leases, subleases, licenses, colocation agreements or other documents evidencing the right of any Person (other than the Company and its Subsidiaries) to use or occupy space or equipment or obtain services in or on any of the Real Property nor (ii) to the knowledge of the Company, is any Person other than the Company and its Subsidiaries, using or occupying space or equipment or obtaining other services in or on any of the Real Property. (b) No Customer Contract contains any purchase option or other right to acquire any property of the Company or any of its Subsidiaries that is, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole. (c) There is no existing material default or breach by, no event has occurred that with notice or lapse of time or both would constitute a material default or breach by, and none of the Company or any of its Subsidiaries has received any notice alleging any material default or breach by, the Company or any of its Subsidiaries under any Material Customer Contract. To the knowledge of the Company, (i) there is no material default, and no event has occurred that with notice or lapse of time or both would constitute a material default, by (A) any Customer under a Material Customer Contract, or (B) any other Customer under a Customer Contract except where such defaults, in the aggregate, involve an amount in dispute of less than €2,000,000non-exclusive, (ii) no service issue with respect to Distributor Contracts covering a territory or other event has occurred in territories within the twelve (12) month period ended June 30United States are terminable by either party thereto on not greater 30 days notice, 2019 which would entitle any Customer to a credit or offset against its obligations to pay rent or other revenues in an amount which exceeds €2,000,000 in the aggregate and (iii) each Material Customer Contract is valid, binding and enforceable in all material respects with respect to Distributor Contracts covering a territory or territories outside of the Company or one of its Subsidiaries, United States are terminable by either party thereto on the one hand, and the other parties thereto, on the other hand, in accordance with its terms, subject to the Enforceability Exceptions, and there is no Action, voluntary or involuntary, pending against any party to a Material Customer Contract under any section or sections of any bankruptcy or insolvency law. Neither the Company nor any of its Subsidiaries has received notice to terminate, not renew or challenge the validity or enforceability of any Material Customer Contractgreater than 90 days notice.

Customer Contracts. (a) To the extent permissible under the Antitrust Laws, a listA description, as of June 20191, 2015, of each of the Customer Contracts of the Group Companies setting forth the name of the Customer, rent commencement date (if it has not yet occurred), initial expiration date, current expiration date (accounting for any expansion and termination rights that have been exerciseddate, acknowledged or actioned)renewal notices, unexercised and unexpired expansion renewal options, capacity remaining months in kilowatts term and monthly revenue (for the month of June 2019May 2015) is set forth in Section 3.22(aattached hereto as Schedule 4.19(a) of the Company Letter (the “Customer Contract Spreadsheet”). The foregoing information contained in the Customer Contract Spreadsheet is accurate and complete in all material respects as of the date hereof other than changes that have occurred since June 301, 2019 2015 resulting from the conduct of business by the Company and its Subsidiaries Group Companies in the ordinary course of business consistent with past practice and, with respect to changes occurring pursuant to Service Orders, none of which was a Prohibited Service Order. The Company has delivered or made available to Parent copies of Customer Contracts (excluding Service Orders) which are set forth on the Customer Contract Spreadsheet with the Group Companies’ top 50 Customers (each, a “Material Customer”) by revenue received in April 2015 (such Customer Contracts, the “Material Customer Contracts”). Other than the rights of tenants under the Owned Real Property Sub Leases, the rights of Customers under the Customer Contracts and the rights of Landlords landlords under Company Material Real Property Leases, (ia) there are no leases, subleases, licenses, colocation agreements or other documents evidencing the right of any Person (other than the Company and its SubsidiariesGroup Companies) to use or occupy space or equipment or obtain services in or on any of about the Real Property nor (iib) to the knowledge Knowledge of the Company, is any Person other than the Company and its SubsidiariesGroup Companies, using or occupying space or equipment or obtaining other services in or on any about the Real Property by, through or from the Group Companies. The aggregate security deposits held by the Group Companies under the Customer Contracts and Owned Real Property Sub Leases does not exceed $2,750,000 in the aggregate. All of the Real Propertyinformation contained in the Customer Contract Spreadsheet is true, correct and complete in all material respects. (b) No The Material Customers have no renewal or expansion option except as set forth in the Customer Contract contains Contracts or in any purchase option or other right to acquire any property related Service Order. None of the Company Material Customer Contracts, nor any interest therein, has been previously assigned or pledged by any of its Subsidiaries that isthe Group Companies except such assignments or pledges as shall be fully released prior to the Closing. Schedule 4.19(b) set forth a list of all Customer notices of service issues for the twelve month period ended June 20, individually or in the aggregate, 2015. (c) Except as would not be material to the Company and its SubsidiariesGroup Companies, taken as a whole. , each Customer Contract is valid, binding and enforceable in all material respects in accordance with its respective terms on the Group Companies (c) subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity). There is no existing material default or breach by, no event has occurred that with notice or lapse of time or both would constitute a material default or breach by, and none of the Company or any of its Subsidiaries Group Companies has received any notice alleging any material default or breach by, the Company or any of its Subsidiaries the Group Companies under any Material Customer Contract. To Contract and, to the knowledge Knowledge of the Company, (i1) there is no material default, and no event default (other than any default that has occurred that with notice been continuing for 60 or lapse of time or both would constitute a material default, fewer days) by (Ai) any Material Customer under a Material Customer Contract, or (Bii) any other Customer under a Customer Contract except where such defaults, in the aggregate, involve an amount in dispute of less than €2,000,000$1,000,000, (ii2) no service issue or other event has occurred in the twelve (12) month period ended June 30, 2019 which would result in a breach or violation of, or a default under, the Customer Contracts by any of the Group Companies that would entitle any Customer the Customers thereunder to a credit or offset against its their obligations to pay rent or other revenues in an amount which exceeds €2,000,000 $1,000,000 in the aggregate aggregate, and (iii3) each Material Customer Contract is valid, binding and enforceable in all material respects with respect to the Company or one of its Subsidiaries, on the one hand, and the other parties thereto, on the other hand, in accordance with its terms, thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting generally the Enforceability Exceptionsenforcement of creditors’ rights and subject to general principles of equity), and there is no Actionaction or proceeding, voluntary or involuntary, pending against any party to a Material Customer Contract under any section or sections of any bankruptcy or insolvency law. Neither the Company nor any of its Subsidiaries has received notice to terminate, not renew or challenge the validity or enforceability of any Material Customer Contract.

Customer Contracts. (a) To Notwithstanding anything in the extent permissible under Framework Agreement, any Transaction Agreement or any other agreement to the Antitrust Lawscontrary, a listthe parties agree that from and after the date hereof, as of June 2019, of each of the Customer Contracts setting forth parents and their respective Affiliates shall be entitled to enter into new agreements with Qualifying MNC Customers and agreements for the Concert Group's provision of Carrier Services (in each case, including agreements extending the term of, or renewing or adding additional services to existing agreements, but not merely adding additional volume) in the name of the Customerapplicable parent or any Affiliate thereof, rent commencement date (if it has not yet occurred)provided, current expiration date (accounting for any expansion and termination rights that have been exercisedthat, acknowledged the applicable parent or actioned), unexercised and unexpired expansion options, capacity Affiliate thereof shall hold such contract in kilowatts and monthly revenue (trust for the month of June 2019) is set forth in Section 3.22(a) economic benefit or risk of the Company Letter Concert Group, and all revenues and receivables and payables derived therefrom in respect of performance prior to the Closing Date will be promptly transferred to a member of the Concert Group prior to the Closing (it being agreed that after the “Customer Contract Spreadsheet”Closing such contracts shall be for the economic benefit or risk of, and all amounts payable thereunder in respect of performance from and after the Closing shall be paid to, the relevant parent or its Affiliate). The foregoing information contained . (b) With respect to any agreement in the Customer Contract Spreadsheet is accurate and complete in all material respects effect as of the date hereof relating to the offer, sale or distribution of Communications Services to any Qualifying MNC Customer or relating to the Concert Group's provision of Carrier Services, in either case which agreement is allocated to the other than changes that have occurred since June 30parent pursuant to this Agreement from and after the Closing, 2019 resulting from the conduct parties shall not, and shall not permit any of business by their respective Affiliates to, seek to induce or induce any third party to terminate or breach such agreement, or to amend any such agreement to reduce the Company and its Subsidiaries level of any products or services committed thereunder or to shorten the term thereof. Without diminishing the obligations set forth in the ordinary course of business consistent with past practice andpreceding sentence, with respect if, prior to changes occurring pursuant to Service Ordersthe Closing, none of which was a Prohibited Service Order. Other than the rights of Customers under the Qualifying MNC Customer Contracts and the rights of Landlords under Company Property Leases, (i) there are no leases, subleases, licenses, colocation agreements or other documents evidencing the right of any Person (other than the Company and its Subsidiaries) to use or occupy space or equipment or obtain services in or on any customer of the Real Property nor (ii) Concert Group requests the assignment or transfer of a customer contract existing as of the date hereof to the knowledge parent to whom such contract is to be transferred as of the CompanyClosing Date, is the Shareholder Representatives shall review the request. If the Shareholder Representatives determine that the assignment or transfer request should be granted, the customer contract in question shall be assigned or transferred to the applicable parent or its Affiliate only to the extent permitted by Applicable Law, it being understood that notwithstanding any Person other than such assignment or transfer, such parent or its Affiliate shall hold such contract in trust for the Company and its Subsidiaries, using economic benefit or occupying space or equipment or obtaining other services in or on any risk of the Real Property. (b) No Customer Contract contains any purchase option or other right Concert Group, and all revenues and receivables and payables derived therefrom in respect of performance prior to acquire any property the Closing Date will be transferred to a member of the Company Concert Group prior to Closing (it being agreed that after the Closing such contracts shall be for the economic benefit or any of its Subsidiaries that is, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole. (c) There is no existing material default or breach by, no event has occurred that with notice or lapse of time or both would constitute a material default or breach byrisk of, and none all amounts payable thereunder in respect of performance from and after the Company or any of its Subsidiaries has received any notice alleging any material default or breach byClosing shall be paid to, the Company relevant parent or any of its Subsidiaries under any Material Customer Contract. To the knowledge of the Company, (i) there is no material default, and no event has occurred that with notice or lapse of time or both would constitute a material default, by (A) any Customer under a Material Customer Contract, or (B) any other Customer under a Customer Contract except where such defaults, in the aggregate, involve an amount in dispute of less than €2,000,000, (ii) no service issue or other event has occurred in the twelve (12) month period ended June 30, 2019 which would entitle any Customer to a credit or offset against its obligations to pay rent or other revenues in an amount which exceeds €2,000,000 in the aggregate and (iii) each Material Customer Contract is valid, binding and enforceable in all material respects with respect to the Company or one of its Subsidiaries, on the one hand, and the other parties thereto, on the other hand, in accordance with its terms, subject to the Enforceability Exceptions, and there is no Action, voluntary or involuntary, pending against any party to a Material Customer Contract under any section or sections of any bankruptcy or insolvency law. Neither the Company nor any of its Subsidiaries has received notice to terminate, not renew or challenge the validity or enforceability of any Material Customer ContractAffiliate).