Shared Contracts. (a) Any Contract with a Third Party that relates to both the NiSource Business and the Columbia Business (each such Contract, a “Shared Contract”) shall be handled as contemplated by Section 5.2(d) unless NiSource determines, in its sole discretion, that it is desirable to partially assign such Shared Contract as contemplated by Section 5.2(b) or to amend such Shared Contract as contemplated by Section 5.2(c). (b) If any Shared Contract can be partially assigned by its terms and NiSource determines, in its sole discretion, that it is so desirable with respect to such Shared Contract, NiSource shall assign such Shared Contract in part to Columbia, or another Columbia Party designated by Columbia, so that the Columbia Parties will be entitled to the benefits and rights relating to the Columbia Business and will assume their related portion of any Liabilities under such Shared Contract. If any such partial assignment requires the consent or approval of any Third Party or any other required action, the partial assignment of such Shared Contract shall be effected in accordance with the terms of this Agreement, if and when such consent or approval is obtained or such other required action has been taken. (c) If NiSource determines, in its sole discretion, that it is so desirable with respect to any Shared Contract, NiSource and Columbia shall, and shall cause the applicable NiSource Parties and Columbia Parties to, cooperate and use commercially reasonable efforts to enter into an arrangement with the counterparty to such Shared Contract to amend such Shared Contract so as to delete all obligations therefrom (i) to the extent that such obligations relate to the NiSource Business, and enter into a new Contract with the applicable counterparty which solely relates to the Columbia Business, on substantially equivalent terms and conditions as are then in effect under such Shared Contract, or (ii) to the extent that such obligations relate to the Columbia Business, and enter into a new Contract with the applicable counterparty which solely relates to the NiSource Business, on substantially equivalent terms and conditions as are then in effect under such Shared Contract. (d) With respect to each Shared Contract that is not partially assigned or amended as contemplated by Section 5.2(b) or Section 5.2(c), NiSource and Columbia shall, and shall cause the applicable NiSource Parties and Columbia Parties to, cooperate in any lawful and reasonable arrangement, to the extent so permitted under the terms of such Shared Contract and applicable Law: (i) to provide the applicable NiSource Party the benefits and obligations of any such Shared Contract with respect to the NiSource Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the NiSource Party any or all of the rights and obligations with respect to such Shared Contract with respect to the NiSource Business, including, to the extent applicable and appropriate, upon the request and at the sole cost and expense of NiSource, CPG or the applicable CPG Parties using commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims under such Shared Contract with respect to the NiSource Business on the applicable NiSource Parties’ behalf where such right to pursue a breach is not passed on to NiSource. In any such arrangement, the NiSource Parties will, with respect to that portion of the Shared Contract relating to the NiSource Business, (A) bear the sole responsibility for completion of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of Columbia and the applicable Columbia Party related to such activities, (F) be entitled to continue to receive any correspondence or invoices delivered with respect to such Shared Contract and (G) be entitled to receive copies of all correspondence and invoices delivered to or by any Columbia Party with respect to such Shared Contract; and (ii) to provide the applicable Columbia Party the benefits and obligations of any such Shared Contract with respect to the Columbia Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the Columbia Party any or all of the rights and obligations with respect to such Shared Contract with respect to the Columbia Business including, to the extent applicable and appropriate, upon the request and at the sole cost and expense of CPG, NiSource or the applicable NiSource Parties using commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims under such Shared Contract with respect to the CPG Business on the applicable CPG Parties’ behalf where such right to pursue a breach is not passed on to CPG. In any such arrangement, the Columbia Parties will, with respect to that portion of the Shared Contract relating to the Columbia Business, (A) bear the sole responsibility for completion of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of NiSource and the applicable NiSource Party related to such activities and (F) be entitled to receive copies of all correspondence and invoices delivered to or by any NiSource Party with respect to such Shared Contract. (e) With respect to each Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d), NiSource, on behalf of itself and each of the NiSource Parties, shall indemnify, defend and hold harmless each of the Columbia Parties from and against any and all Expenses or Losses incurred or suffered by one or more of the Columbia Parties in connection with, relating to, arising out of or due to, directly or indirectly, that portion of the Shared Contract relating to the NiSource Business. With respect to each Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d), Columbia, on behalf of itself and each of the Columbia Parties, shall indemnify, defend and hold harmless each of the NiSource Parties from and against any and all Expenses or Losses incurred or suffered by one or more of the NiSource Parties in connection with, relating to, arising out of or due to, directly or indirectly, that portion of the Shared Contract relating to the Columbia Business. (f) No NiSource Party or Columbia Party shall be required to pay any consideration to any Third Party in connection with implementing the arrangements contemplated by this Section 5.2. (g) The parties shall follow the procedures specified in Section 10.2 in the event of any dispute regarding the rights and obligations of the NiSource Parties or the Columbia Parties with respect to any Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d).
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Nisource Inc/De), Separation and Distribution Agreement (Columbia Pipeline Group, Inc.)
Shared Contracts. (a) Any Contract with a Third Party that relates to both the NiSource Fortune Brands Business and the Columbia H&S Business (each such Contract, a “Shared Contract”) shall be handled as contemplated by Section 5.2(d6.2(d) unless NiSource Fortune Brands determines, in its sole discretion, that it is desirable to partially assign such Shared Contract as contemplated by Section 5.2(b6.2(b) or to amend such Shared Contract as contemplated by Section 5.2(c6.2(c).
(b) If any Shared Contract can be partially assigned by its terms and NiSource Fortune Brands determines, in its sole discretion, that it is so desirable with respect to such Shared Contract, NiSource Fortune Brands shall assign such Shared Contract in part to ColumbiaH&S, or another Columbia H&S Party designated by ColumbiaH&S, so that the Columbia H&S Parties will be entitled to the benefits and rights relating to the Columbia H&S Business and will assume their related portion of any Liabilities under such Shared Contract. If any such partial assignment requires the consent or approval of any Third Party or any other required action, the partial assignment of such Shared Contract shall be effected in accordance with the terms of this Agreement, if and when such consent or approval is obtained or such other required action has been taken.
(c) If NiSource Fortune Brands determines, in its sole discretion, that it is so desirable with respect to any Shared Contract, NiSource Fortune Brands and Columbia H&S shall, and shall cause the applicable NiSource Fortune Brands Parties and Columbia H&S Parties to, cooperate and use commercially reasonable efforts to enter into an arrangement with the counterparty to such Shared Contract to amend such Shared Contract so as to delete all obligations therefrom (i) to the extent that such obligations relate to the NiSource Fortune Brands Business, and enter into a new Contract with the applicable counterparty which solely relates to the Columbia Fortune Brands Business, on substantially equivalent terms and conditions as are then in effect under such Shared Contract, or (ii) to the extent that such obligations relate to the Columbia H&S Business, and enter into a new Contract with the applicable counterparty which solely relates to the NiSource H&S Business, on substantially equivalent terms and conditions as are then in effect under such Shared Contract.
(d) With respect to each Shared Contract that is not partially assigned or amended as contemplated by Section 5.2(b6.2(b) or Section 5.2(c6.2(c), NiSource Fortune Brands and Columbia H&S shall, and shall cause the applicable NiSource Fortune Brands Parties and Columbia H&S Parties to, cooperate in any lawful and reasonable arrangement, to the extent so permitted under the terms of such Shared Contract and applicable Lawlaw:
(i) to provide the applicable NiSource Fortune Brands Party the benefits and obligations of any such Shared Contract with respect to the NiSource Fortune Brands Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the NiSource Fortune Brands Party any or all of the rights and obligations with respect to such Shared Contract with respect to the NiSource Fortune Brands Business, including, to the extent applicable and appropriate, upon the request and at the sole cost and expense of NiSource, CPG or the applicable CPG Parties using commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims under such Shared Contract with respect to the NiSource Business on the applicable NiSource Parties’ behalf where such right to pursue a breach is not passed on to NiSource. In any such arrangement, the NiSource Fortune Brands Parties will, with respect to that portion of the Shared Contract relating to the NiSource Fortune Brands Business, (A) bear the sole responsibility for completion of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of Columbia H&S and the applicable Columbia H&S Party related to such activities, (F) be entitled to continue to receive any correspondence or invoices delivered with respect to such Shared Contract and (G) be entitled to receive copies of all correspondence and invoices delivered to or by any Columbia H&S Party with respect to such Shared Contract; and
(ii) to provide the applicable Columbia H&S Party the benefits and obligations of any such Shared Contract with respect to the Columbia H&S Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the Columbia H&S Party any or all of the rights and obligations with respect to such Shared Contract with respect to the Columbia Business including, to the extent applicable and appropriate, upon the request and at the sole cost and expense of CPG, NiSource or the applicable NiSource Parties using commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims under such Shared Contract with respect to the CPG Business on the applicable CPG Parties’ behalf where such right to pursue a breach is not passed on to CPGH&S Business. In any such arrangement, the Columbia H&S Parties will, with respect to that portion of the Shared Contract relating to the Columbia H&S Business, (A) bear the sole responsibility for completion of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of NiSource Fortune Brands and the applicable NiSource Fortune Brands Party related to such activities and (F) be entitled to receive copies of all correspondence and invoices delivered to or by any NiSource Fortune Brands Party with respect to such Shared Contract.
(e) With respect to each Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d6.2(d), NiSourceFortune Brands, on behalf of itself and each of the NiSource Fortune Brands Parties, shall indemnify, defend and hold harmless each of the Columbia H&S Parties from and against any and all Expenses or Losses incurred or suffered by one or more of the Columbia H&S Parties in connection with, relating to, arising out of or due to, directly or indirectly, that portion of the Shared Contract relating to the NiSource Fortune Brands Business. With respect to each Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d6.2(d), ColumbiaH&S, on behalf of itself and each of the Columbia H&S Parties, shall indemnify, defend and hold harmless each of the NiSource Fortune Brands Parties from and against any and all Expenses or Losses incurred or suffered by one or more of the NiSource Fortune Brands Parties in connection with, relating to, arising out of or due to, directly or indirectly, that portion of the Shared Contract relating to the Columbia Fortune Brands Business.
(f) No NiSource Fortune Brands Party or Columbia H&S Party shall be required to pay any consideration to any Third Party in connection with implementing the arrangements contemplated by this Section 5.26.2.
(g) The parties shall follow the procedures specified in Section 10.2 12.2 in the event of any dispute regarding the rights and obligations of the NiSource Fortune Brands Parties or the Columbia H&S Parties with respect to any Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d6.2(d).
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Fortune Brands Home & Security, Inc.), Separation and Distribution Agreement (Fortune Brands Home & Security LLC)
Shared Contracts. (a) Any Section 7.17(a) of the KO Disclosure Schedule sets forth a list of all Shared KO Contracts as of the date hereof. KO agrees, at NewCo’s request, to use commercially reasonable efforts to cause each Shared KO Contract with a Third Party that relates to both the NiSource Business and the Columbia Business (each such Contract, a “Shared Contract”) shall be handled as contemplated by Section 5.2(d) unless NiSource determines, assigned in its sole discretion, that it is desirable to partially assign such Shared Contract as contemplated by Section 5.2(b) part or to appropriately amend such Shared Contract as contemplated by Section 5.2(c).
(b) If any Shared Contract can be partially assigned by its terms and NiSource determines, in its sole discretion, that it is so desirable with respect to such Shared Contract, NiSource shall assign such Shared Contract in part to Columbia, or another Columbia Party designated by Columbia, KO Contracts so that NewCo will, at and following the Columbia Parties will Closing, be entitled to the rights and benefits and rights relating inuring to the Columbia KO Energy Business and will assume their related portion of any Liabilities under such Shared Contract. If any KO Contracts (such Shared KO Contracts that are subject to NewCo’s request for partial assignment requires the consent or approval of any Third Party or any other required actionamendment, the partial assignment “Assumed Shared KO Contracts”). In addition, KO will provide NewCo with contact information for such Third Parties that are party to such Assumed Shared KO Contracts, introduce Representatives of NewCo to the contacts at such Shared Contract shall be effected in accordance with the terms of this Agreement, if and when such consent or approval is obtained or such other required action has been taken.
(c) If NiSource determines, in its sole discretion, that it is so desirable with respect to any Shared Contract, NiSource and Columbia shall, and shall cause the applicable NiSource Third Parties and Columbia Parties to, cooperate and use commercially reasonable efforts to enter into facilitate and, if requested by Monster, attend a reasonable number of such meetings (which may be via conference call) with such Third Parties and Monster at mutually agreed times and on reasonable advance notice. If, after using commercially reasonable efforts, KO reasonably determines that such assignment or amendment cannot be obtained, or if an attempted assignment or amendment thereof would adversely affect in a material respect the rights of KO thereunder, KO and Monster will use their respective commercially reasonable efforts to negotiate a mutually acceptable arrangement with the counterparty to such Shared Contract to amend such Shared Contract so as to delete all obligations therefrom under which (i) NewCo will obtain the benefits and assume the obligations under such Assumed Shared KO Contract to the extent that such obligations relate related to the NiSource KO Energy Business, and enter including entering into a new Contract with sub-contracting, sub-licensing or sub-leasing arrangements for the applicable counterparty which solely relates to the Columbia Business, on substantially equivalent terms and conditions as are then in effect under such Shared Contractbenefit of NewCo, or (ii) KO will enforce for the benefit of NewCo, with NewCo assuming KO’s obligations thereunder, any and all rights of KO against a Third Party to the extent that such obligations relate related to the Columbia KO Energy Business; provided, that, “commercially reasonable efforts” as used in this Section 7.17(a) shall not require any of the Parties or any of their respective Affiliates to commence any litigation or pay any amount of money or otherwise grant any accommodation (financial or otherwise) to any Third Party, other than incidental costs that are de minimis in amount. KO and enter into a new Contract with the applicable counterparty which solely relates to the NiSource Business, on substantially equivalent terms and conditions as are then in effect under such Shared Contract.
(d) With respect to each Shared Contract that is its Affiliates may not partially assigned or amended as contemplated by Section 5.2(b) or Section 5.2(c), NiSource and Columbia shall, and shall cause the applicable NiSource Parties and Columbia Parties to, cooperate in any lawful and reasonable arrangementterminate or, to the extent adversely affecting the KO Energy Business, amend any Assumed Shared KO Contract without the prior written consent of NewCo; provided that, KO and its Affiliates may terminate or amend such Contracts without the prior written consent of NewCo, so permitted long as alternative arrangements are made to provide the KO Energy Business with substantially comparable benefits provided under such Contracts.
(b) Section 7.17(b) of the terms Monster Disclosure Schedule sets forth a list of all Shared Monster Contracts as of the date hereof. Monster agrees, at KO’s request, to use commercially reasonable efforts to cause each Shared Monster Contract to be assigned in part or to appropriately amend such Shared Monster Contracts so that the applicable KO Purchasers will, at and following the Closing, be entitled to the rights and benefits inuring to the Monster Non-Energy Business under such Shared Monster Contracts (such Shared Monster Contracts that are subject to KO’s request for partial assignment or amendment, the “Assumed Shared Monster Contracts”). In addition, Monster will provide KO with contact information for such Third Parties that are party to such Assumed Shared Monster Contracts, introduce Representatives of NewCo to the contacts at such Third Parties and use commercially reasonable efforts to facilitate and, if requested by KO, attend a reasonable number of such Shared Contract meetings (which may be via conference call) with such Third Parties and applicable Law:
KO at mutually agreed times and on reasonable advance notice. If, after using commercially reasonable efforts, Monster reasonably determines that such assignment or amendment cannot be obtained, or if an attempted assignment or amendment thereof would adversely affect in a material respect the rights of Monster thereunder, KO and Monster will use their respective commercially reasonable efforts to negotiate a mutually acceptable arrangement under which (i) to provide the applicable NiSource Party KO Purchasers will obtain the benefits and assume the obligations of any under such Assumed Shared Monster Contract with respect to the NiSource extent related to the Monster Non-Energy Business, including subcontractingentering into sub-contracting, licensingsub-licensing or sub-leasing arrangements for the benefit of the applicable KO Purchasers, sublicensingor (ii) Monster will enforce for the benefit of the applicable KO Purchasers, leasing or subleasing with the applicable KO Purchasers assuming Monster’s obligations thereunder, any and all rights of KO against a Third Party to the NiSource Party extent related to the Monster Non-Energy Business; provided, that, “commercially reasonable efforts” as used in this Section 7.17(b) shall not require any or all of the rights Parties or any of their respective Affiliates to commence any litigation or pay any amount of money or otherwise grant any accommodation (financial or otherwise) to any Third Party, other than incidental costs that are de minimis in amount. Monster and obligations with respect to such Shared Contract with respect to the NiSource Business, includingits Affiliates may not terminate or, to the extent applicable and appropriate, upon adversely affecting the request and at the sole cost and expense of NiSource, CPG or the applicable CPG Parties using commercially reasonable efforts and in a commercially reasonable timeMonster Non-frame to pursue breach of warranty claims under such Shared Contract with respect to the NiSource Business on the applicable NiSource Parties’ behalf where such right to pursue a breach is not passed on to NiSource. In any such arrangement, the NiSource Parties will, with respect to that portion of the Shared Contract relating to the NiSource Energy Business, (A) bear amend any Assumed Shared Monster Contract without the sole responsibility for completion prior written consent of KO; provided that, Monster and its Affiliates may terminate or amend such Contracts without the work or provision prior written consent of goods and servicesKO, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of Columbia and the applicable Columbia Party related to such activities, (F) be entitled to continue to receive any correspondence or invoices delivered with respect to such Shared Contract and (G) be entitled to receive copies of all correspondence and invoices delivered to or by any Columbia Party with respect to such Shared Contract; and
(ii) so long as alternative arrangements are made to provide the applicable Columbia Party the Monster Non-Energy Business with substantially comparable benefits and obligations of any such Shared Contract with respect to the Columbia Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the Columbia Party any or all of the rights and obligations with respect to such Shared Contract with respect to the Columbia Business including, to the extent applicable and appropriate, upon the request and at the sole cost and expense of CPG, NiSource or the applicable NiSource Parties using commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims provided under such Shared Contract with respect to the CPG Business on the applicable CPG Parties’ behalf where such right to pursue a breach is not passed on to CPG. In any such arrangement, the Columbia Parties will, with respect to that portion of the Shared Contract relating to the Columbia Business, (A) bear the sole responsibility for completion of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of NiSource and the applicable NiSource Party related to such activities and (F) be entitled to receive copies of all correspondence and invoices delivered to or by any NiSource Party with respect to such Shared ContractContracts.
(e) With respect to each Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d), NiSource, on behalf of itself and each of the NiSource Parties, shall indemnify, defend and hold harmless each of the Columbia Parties from and against any and all Expenses or Losses incurred or suffered by one or more of the Columbia Parties in connection with, relating to, arising out of or due to, directly or indirectly, that portion of the Shared Contract relating to the NiSource Business. With respect to each Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d), Columbia, on behalf of itself and each of the Columbia Parties, shall indemnify, defend and hold harmless each of the NiSource Parties from and against any and all Expenses or Losses incurred or suffered by one or more of the NiSource Parties in connection with, relating to, arising out of or due to, directly or indirectly, that portion of the Shared Contract relating to the Columbia Business.
(f) No NiSource Party or Columbia Party shall be required to pay any consideration to any Third Party in connection with implementing the arrangements contemplated by this Section 5.2.
(g) The parties shall follow the procedures specified in Section 10.2 in the event of any dispute regarding the rights and obligations of the NiSource Parties or the Columbia Parties with respect to any Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d).
Appears in 2 contracts
Sources: Asset Transfer Agreement (New Laser Corp), Asset Transfer Agreement (Monster Beverage Corp)
Shared Contracts. (a) Any Contract Subject to Section 2.10(d) and other than with a Third Party respect to the provision of Services under the Transitional Services Agreement or Shared Contracts that relates are sublicensed to both the NiSource Business Company and other Persons in the Columbia Business Company Group pursuant to the Patent and Know-How License Agreement (each such ContractPfizer as Licensor) or the Trademark and Copyright License Agreement, a “Shared Contract”) shall be handled as contemplated by Section 5.2(d) unless NiSource determinesfrom and after the Effective Date, Pfizer may, in its sole discretion, that it is desirable make available to partially assign such Shared Contract as contemplated by Section 5.2(b) or to amend such Shared Contract as contemplated by Section 5.2(c).
(b) If any Shared Contract can be partially assigned by its terms and NiSource determines, in its sole discretion, that it is so desirable with respect to such Shared Contract, NiSource shall assign such Shared Contract in part to Columbia, or another Columbia Party designated by Columbia, so that the Columbia Parties will be entitled to Company Group the benefits and rights relating under Shared Contracts to the Columbia Business extent such benefits and will assume their related portion of any Liabilities under such Shared Contractrights have historically been and currently are provided to the Animal Health Business. If any such partial assignment requires the consent or approval of any Third Party or any other required action, the partial assignment of such Shared Contract shall be effected in accordance with the terms of this Agreement, if and when such consent or approval is obtained or such other required action has been taken.
(c) If NiSource determines, in its sole discretion, that it is so desirable with With respect to any Shared ContractContracts made available to the Company Group pursuant to this Section 2.10(a), NiSource and Columbia shall, and shall cause the applicable NiSource Parties and Columbia Parties to, cooperate and use commercially reasonable efforts to enter into an arrangement with the counterparty to such Shared Contract to amend such Shared Contract so as to delete all obligations therefrom (i) to no Person in the extent that such obligations relate to the NiSource Business, and enter into a new Contract with the applicable counterparty which solely relates to the Columbia Business, on substantially equivalent terms and conditions as are then in effect under such Shared ContractCompany Group shall take any action, or refrain from taking any action, if (A) such action or inaction is reasonably likely to or does result in a breach on the part of any Person in the Pfizer Group under any Shared Contract and (B) such Person in the Company Group would otherwise be obligated to take or not take such action under the Shared Contract had such Person become severally liable under the Shared Contract at the Effective Date and (ii) each Person in the Company Group shall reasonably cooperate with Pfizer and, at Pfizer’s reasonable request, take such actions that are permissible and reasonably necessary or desirable to the extent ensure that such Pfizer is able to perform its obligations relate to the Columbia Business, and enter into a new constituting Shared Contract with the applicable counterparty which solely relates to the NiSource Business, on substantially equivalent terms and conditions as are then in effect Liabilities under such Shared Contract.
(db) With respect to each Shared Contract that is not partially assigned or amended as contemplated by Section 5.2(b) or Section 5.2(c), NiSource and Columbia shall, and shall cause the applicable NiSource Parties and Columbia Parties Liabilities pursuant to, cooperate in any lawful and reasonable arrangementunder or relating to a given Shared Contract, to the extent so permitted under the terms of such Shared Contract and applicable LawLiabilities shall be allocated, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, between the parties as follows:
(i) first, if a Liability is incurred exclusively in respect of a benefit received by one party or its Group, the party or Group receiving such benefit shall be responsible for such Liability and (ii) second, if a Liability cannot be exclusively allocated to provide one party or its Group under clause (i) above, such Liability shall be allocated among both parties and their respective Groups based on the applicable NiSource Party relative proportions of total benefit received (over the benefits term of the Shared Contract, measured as of the date of allocation) under the relevant Shared Contract. Notwithstanding the foregoing, each party and obligations of any such Shared Contract with respect to the NiSource Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the NiSource Party its Group shall be responsible for any or all Liabilities arising out of or resulting from such party’s or Group’s breach of the rights and obligations with respect to such Shared Contract with respect to the NiSource Business, including, to the extent applicable and appropriate, upon the request and at the sole cost and expense of NiSource, CPG or the applicable CPG Parties using commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims under such Shared Contract with respect to the NiSource Business on the applicable NiSource Parties’ behalf where such right to pursue a breach is not passed on to NiSource. In any such arrangement, the NiSource Parties will, with respect to that portion of the Shared Contract relating to the NiSource Business, (A) bear the sole responsibility for completion of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of Columbia and the applicable Columbia Party related to such activities, (F) be entitled to continue to receive any correspondence or invoices delivered with respect to such Shared Contract and (G) be entitled to receive copies of all correspondence and invoices delivered to or by any Columbia Party with respect to such Shared Contract; and
(ii) to provide the applicable Columbia Party the benefits and obligations of any such Shared Contract with respect to the Columbia Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the Columbia Party any or all of the rights and obligations with respect to such Shared Contract with respect to the Columbia Business including, to the extent applicable and appropriate, upon the request and at the sole cost and expense of CPG, NiSource or the applicable NiSource Parties using commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims under such Shared Contract with respect to the CPG Business on the applicable CPG Parties’ behalf where such right to pursue a breach is not passed on to CPG. In any such arrangement, the Columbia Parties will, with respect to that portion of the Shared Contract relating to the Columbia Business, (A) bear the sole responsibility for completion of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of NiSource and the applicable NiSource Party related to such activities and (F) be entitled to receive copies of all correspondence and invoices delivered to or by any NiSource Party with respect to such relevant Shared Contract.
(ec) With respect If Pfizer or any member of the Pfizer Group, on the one hand, or the Company or any member of the Company Group, on the other hand, receives any benefit or payment under any Shared Contract which was intended for the other party or its Group, Pfizer, on the one hand, or the Company, on the other hand, will use its respective commercially reasonable efforts, or will cause any member of its Group to use its commercially reasonable efforts, to deliver, transfer or otherwise afford such benefit or payment to the other party.
(d) It shall be the responsibility of the Company to obtain the agreement of the third party that is the counterparty to each Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d), NiSource, on behalf of itself and each to enter into a new Contract effective as of the NiSource PartiesEffective Date pursuant to which the Company and its Affiliates will receive substantially the same benefits provided by the Shared Contract to the Animal Health Business prior to the Effective Date. Except as expressly provided under the Transitional Services Agreement, shall indemnify, defend and hold harmless each none of Pfizer or any other member of the Columbia Parties from Pfizer Group shall be obligated to make available to the Company Group the benefits and against rights under any and all Expenses or Losses incurred or suffered by one or more of Shared Contracts. In no event shall Pfizer be liable to the Columbia Parties in connection with, relating to, Company for (i) any Liabilities arising out of such new Contracts or due to, directly or indirectly, that portion of the Shared Contract relating to the NiSource Business. With respect to each Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d), Columbia, on behalf of itself and each of the Columbia Parties, shall indemnify, defend and hold harmless each of the NiSource Parties from and against any and all Expenses or Losses incurred or suffered by one or more of the NiSource Parties in connection with, relating to, (ii) Liabilities arising out of or due to, directly or indirectly, that portion the failure of the Shared Contract relating Company to the Columbia Businessobtain any replacement contract.
(f) No NiSource Party or Columbia Party shall be required to pay any consideration to any Third Party in connection with implementing the arrangements contemplated by this Section 5.2.
(g) The parties shall follow the procedures specified in Section 10.2 in the event of any dispute regarding the rights and obligations of the NiSource Parties or the Columbia Parties with respect to any Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d).
Appears in 2 contracts
Sources: Global Separation Agreement, Global Separation Agreement (Zoetis Inc.)
Shared Contracts. (a) Any Within 30 days after the date hereof, Seller may deliver an updated Section 3.5(c) of the Disclosure Schedule that sets forth a correct and complete list of Shared Contracts. A Shared Contract with a Third Party that relates is added to both Section 3.5(c) of the NiSource Business and the Columbia Business (each such Contract, Disclosure Schedule pursuant to this Section 5.15(a) is referred to herein as a “Supplemental Shared Contract.”) shall be handled as contemplated by Section 5.2(d) unless NiSource determines, in its sole discretion, that it is desirable to partially assign such Shared Contract as contemplated by Section 5.2(b) or to amend such Shared Contract as contemplated by Section 5.2(c).
(b) If any Shared Contract can be partially assigned by its terms Seller and NiSource determines, in its sole discretion, that it is so desirable with respect to such Shared Contract, NiSource Purchaser shall assign such Shared Contract in part to Columbia, or another Columbia Party designated by Columbia, so that the Columbia Parties will be entitled to the benefits and rights relating to the Columbia Business and will assume use their related portion of any Liabilities under such Shared Contract. If any such partial assignment requires the consent or approval of any Third Party or any other required action, the partial assignment of such Shared Contract shall be effected in accordance with the terms of this Agreement, if and when such consent or approval is obtained or such other required action has been taken.
(c) If NiSource determines, in its sole discretion, that it is so desirable with respect to any Shared Contract, NiSource and Columbia shall, and shall cause the applicable NiSource Parties and Columbia Parties to, cooperate and use commercially reasonable efforts to enter into an arrangement with the counterparty arrange for Purchaser or a Purchaser Designee, as applicable, to such Shared Contract to amend such Shared Contract so as to delete all obligations therefrom (i) to the extent that such obligations relate to the NiSource Business, and enter into a new Contract with the applicable counterparty Third Party to each Shared Contract, which solely relates to new Contract contains the Columbia Business, on substantially equivalent terms and conditions as are then in effect under such Shared Contract, or (ii) applicable to the extent that such obligations relate to the Columbia Business, and enter into a new Contract with the applicable counterparty which solely relates to the NiSource Business, on substantially equivalent terms and conditions Business as are then in effect under such Shared Contract.
(d) With respect to each Shared Contract that is not partially assigned or amended as contemplated by Section 5.2(b) or Section 5.2(c), NiSource and Columbia shall, and shall cause the applicable NiSource Parties and Columbia Parties to, cooperate in any lawful and reasonable arrangement, to the extent so permitted under the terms of such Shared Contract and applicable Law:
(i) to provide the applicable NiSource Party the benefits and obligations of any such Shared Contract with respect to the NiSource Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the NiSource Party any or all of the rights and obligations with respect to such Shared Contract with respect to the NiSource Business, including, to the extent applicable and appropriate, upon the request and at the sole cost and expense of NiSource, CPG or the applicable CPG Parties using commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims under such Shared Contract with respect to the NiSource Business on the applicable NiSource Parties’ behalf where such right to pursue a breach is not passed on to NiSource. In any such arrangement, the NiSource Parties will, with respect to that portion of the Shared Contract relating to the NiSource Business, (A) bear the sole responsibility for completion of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of Columbia and the applicable Columbia Party related to such activities, (F) be entitled to continue to receive any correspondence or invoices delivered with respect to such Shared Contract and (G) be entitled to receive copies of all correspondence and invoices delivered to or by any Columbia Party with respect to such Shared Contract; and
(ii) to provide the applicable Columbia Party the benefits and obligations of any such Shared Contract with respect to the Columbia Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the Columbia Party any or all of the rights and obligations with respect to such Shared Contract with respect to the Columbia Business including, to the extent applicable and appropriate, upon the request and at the sole cost and expense of CPG, NiSource or the applicable NiSource Parties using commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims under such Shared Contract with respect to the CPG Business on the applicable CPG Parties’ behalf where such right to pursue a breach is not passed on to CPG. In any such arrangement, the Columbia Parties will, with respect to that portion of the Shared Contract relating to the Columbia Business, (A) bear the sole responsibility for completion of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of NiSource and the applicable NiSource Party related to such activities and (F) be entitled to receive copies of all correspondence and invoices delivered to or by any NiSource Party date hereof with respect to such Shared Contract.
(ec) With respect In the event a new Contract is not entered into prior to each Shared Contract that is the subject of an arrangement Closing as contemplated by Section 5.2(d5.15(b), NiSource, on behalf of itself and each of the NiSource Parties, shall indemnify, defend and hold harmless each of the Columbia Parties from and against any after the Closing, Seller and all Expenses or Losses incurred or suffered by one or more of the Columbia Parties in connection withPurchaser shall, relating and shall cause their respective Affiliates to, arising out use commercially reasonable efforts to develop a mutually agreeable arrangement (including by way of amendment or due toaddition of services to the Transition Services Agreement) under which (i) Purchaser or a Purchaser Designee would obtain the benefits and assume the obligations under such Shared Contract to the extent applicable to the Business, directly including by sub-contracting, sub-licensing, or indirectlysub-leasing to Purchaser or such Purchaser Designee (such portion of such Liabilities, that portion the “Purchaser Portion of the Shared Contract relating to Liabilities” and the NiSource Business. With respect to each remainder of such Liabilities under such Shared Contract that is Contract, the subject of an arrangement contemplated by Section 5.2(d), Columbia, on behalf of itself and each of the Columbia Parties, shall indemnify, defend and hold harmless each of the NiSource Parties from and against any and all Expenses or Losses incurred or suffered by one or more of the NiSource Parties in connection with, relating to, arising out of or due to, directly or indirectly, that portion “Seller Portion of the Shared Contract relating Liabilities”) or (ii) such portion of such Shared Contract would be held, as of and from the Closing Date, by Seller or its applicable Subsidiary in trust for Purchaser or a Purchaser Designee and the covenants and obligations thereunder would be performed by Purchaser or such Purchaser Designee in Seller’s or such Subsidiary’s name and all benefits, obligations and Liabilities existing thereunder to the Columbia Businessextent applicable to the Business would be for Purchaser’s or such Purchaser Designee’s account.
(fd) No NiSource Party or Columbia Party shall be required Notwithstanding anything contained herein to pay any consideration to any Third Party in connection with implementing the arrangements contemplated by this Section 5.2.
(g) The parties shall follow the procedures specified in Section 10.2 in the event of any dispute regarding the rights and obligations of the NiSource Parties or the Columbia Parties contrary, with respect to any Supplemental Shared Contract Contracts that is involve the subject licensing or other use of an arrangement contemplated Third Party Intellectual Property Rights that are material to the operation or conduct of the Business, in the event that the continued license or use of such Intellectual Property Rights in the operation or conduct of the Business following the Closing Date would require payment by Section 5.2(dPurchaser or its Subsidiaries of more than $2,500,000 in the aggregate during the 12 month period immediately following the Closing Date (after taking into account the availability of any enterprise licenses or similar rights then held by Purchaser and its Subsidiaries), Purchaser and Seller shall negotiate in good faith with respect to the appropriate allocation of responsibility for such costs.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Extreme Networks Inc)
Shared Contracts. (a) Any Contract with a Third Party that relates Some contracts, agreements and leases relating to both the NiSource Business and Townsquare Stations or Cumulus Stations, as applicable, may be used in the Columbia Business operation of multiple stations or other business units (each such Contracteach, a “Shared Contract”). Schedule 1.3(a) sets forth all Shared Contracts relating to the Townsquare Stations that are material with respect to the applicable market, and Schedule 1.3(b) sets forth all Shared Contracts relating to the Cumulus Stations that are material with respect to the applicable market. Except as provided by Schedule 1.2(c) or Schedule 1.2(d), as applicable, at the Closing, the rights and obligations under Shared Contracts shall be handled as contemplated equitably allocated among stations and such other business units in a manner reasonably determined by Section 5.2(dthe parties in accordance with the following equitable allocation principles:
(i) unless NiSource determines, any allocation expressly set forth in its sole discretion, that it is desirable to partially assign such the Shared Contract as contemplated shall control;
(ii) if none, then any allocation previously made by Section 5.2(bthe conveying party in the ordinary course of station operations shall control;
(iii) or if none, then the quantifiable proportionate benefit to amend such Shared Contract as contemplated be received by Section 5.2(c)the parties after Closing shall control; and
(iv) if not quantifiable, then reasonable accommodation shall control.
(b) If any Shared Contract can be partially assigned by its terms and NiSource determines, in its sole discretion, that it is so desirable with respect to such Shared Contract, NiSource shall assign such Shared Contract in part to Columbia, or another Columbia Party designated by Columbia, so that the Columbia Parties will be entitled to the benefits and rights relating to the Columbia Business and will assume their related portion of any Liabilities under such Shared Contract. If any such partial assignment requires the consent or approval of any Third Party or any other required action, the partial assignment of such Shared Contract shall be effected in accordance with the terms of this Agreement, if and when such consent or approval is obtained or such other required action has been taken.
(c) If NiSource determines, in its sole discretion, that it is so desirable with respect to any Shared Contract, NiSource and Columbia shall, and shall cause the applicable NiSource Parties and Columbia Parties to, cooperate and use commercially reasonable efforts to enter into an arrangement with the counterparty to such Shared Contract to amend such Shared Contract so as to delete all obligations therefrom (i) to the extent that such obligations relate to the NiSource Business, and enter into a new Contract with the applicable counterparty which solely relates to the Columbia Business, on substantially equivalent terms and conditions as are then in effect under such Shared Contract, or (ii) to the extent that such obligations relate to the Columbia Business, and enter into a new Contract with the applicable counterparty which solely relates to the NiSource Business, on substantially equivalent terms and conditions as are then in effect under such Shared Contract.
(d) With respect to each Shared Contract that is not partially assigned or amended as contemplated by Section 5.2(b) or Section 5.2(c), NiSource and Columbia shall, and shall cause the applicable NiSource Parties and Columbia Parties to, cooperate in any lawful and reasonable arrangement, to the extent so permitted under the terms of such Shared Contract and applicable Law:
(i) to provide the applicable NiSource Party the benefits and obligations of any such Shared Contract with respect to the NiSource Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the NiSource Party any or all of the rights and obligations with respect to such Shared Contract with respect to the NiSource Business, including, to the extent applicable and appropriate, upon the request and at the sole cost and expense of NiSource, CPG or the applicable CPG Parties using commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims under such Shared Contract with respect to the NiSource Business on the applicable NiSource Parties’ behalf where such right to pursue a breach is not passed on to NiSource. In any such arrangement, the NiSource Parties will, with respect to that portion of the Shared Contract relating to the NiSource Business, (A) bear the sole responsibility for completion of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (Ei) promptly reimburse the reasonable costs parties shall cooperate with each other and expenses of Columbia and the applicable Columbia Party related to each contract counterparty in such activitiesallocation, (Fii) be entitled to continue to receive any correspondence or invoices delivered with respect to only the allocated portion of each such Shared Contract is included in the contracts to be assigned and assumed under this Agreement (without need for further action), and (Giii) be entitled to receive copies of all correspondence and invoices delivered to or by any Columbia Party with respect to such Shared Contract; and
(ii) to provide the applicable Columbia Party the benefits and obligations of any such Shared Contract with respect to the Columbia Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the Columbia Party any or all of the rights and obligations with respect to such Shared Contract with respect to the Columbia Business including, to the extent applicable and appropriate, upon the request and at the sole cost and expense of CPG, NiSource or the applicable NiSource Parties using parties shall use their commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims under ensure that such Shared Contract with respect to the CPG Business on the applicable CPG Parties’ behalf where such right to pursue a breach is not passed on to CPG. In any such arrangement, the Columbia Parties will, with respect to that portion allocation shall occur by termination of the Shared Contract relating to and execution of new contracts between each contract counterparty and each of Townsquare and Cumulus (but only if such contract is on terms at least as favorable than the Columbia Businessexisting contract), (A) bear but shall include the sole responsibility for completion of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination allocated portion of such Shared Contractcontracts will not include any group discounts or similar benefits specific to a party or its affiliates. Completion of documentation of any such allocation is not a condition to Closing; provided, (E) promptly reimburse the reasonable costs and expenses of NiSource and the applicable NiSource Party related to such activities and (F) be entitled to receive copies of all correspondence and invoices delivered to or by any NiSource Party however, that with respect to each such Shared Contract.
Contract which is not allocated at Closing pursuant to subsection (eiii) With respect to each Shared Contract that is the subject of an arrangement contemplated by this Section 5.2(d1.3(b), NiSourcethe parties shall cooperate to the extent feasible in effecting a lawful and commercially reasonable arrangement under which acquiring party shall receive the allocable benefits thereunder from and after Closing, on behalf of itself and each to the extent of the NiSource Partiesallocable benefits received, the acquiring party shall indemnify, defend pay and hold harmless each of perform the Columbia Parties conveying party’s obligations arising thereunder from and against any after Closing in accordance with its terms, until new documentation effecting the allocation described in this Section 1.3 is executed and all Expenses or Losses incurred or suffered by one or more of the Columbia Parties in connection with, relating to, arising out of or due to, directly or indirectly, that portion of the Shared Contract relating to the NiSource Businessdelivered. With respect to each Shared Contract that is Contract, each party shall be responsible for all costs associated with the subject of an arrangement contemplated by Section 5.2(d)portion allocated to such party, Columbia, on behalf of itself and each of the Columbia Parties, shall indemnify, defend indemnify and hold harmless each the other party for any losses associated with the performance of such party for the portion allocated to such party.
(c) In the event that the terms of any Shared Contract prohibits the allocation contemplated by this Section 1.3, the parties shall use commercially reasonable efforts to provide the benefits and obligations of the NiSource Parties from and against any and all Expenses or Losses incurred or suffered by one or more of the NiSource Parties in connection with, relating to, arising out of or due to, directly or indirectly, that portion of the Shared Contract relating that would have been allocated to the Columbia Businessa party hereunder but for any such prohibition.
(fd) No NiSource Party or Columbia Party Notwithstanding the foregoing, in no event shall be required to pay any consideration a Shared Contract relate to any Third Party in connection with implementing the arrangements contemplated by this Section 5.2.
(g) The parties shall follow the procedures specified in Section 10.2 in the event employees of any dispute regarding the rights and obligations of the NiSource Parties Townsquare or Cumulus, or the Columbia Parties following marks (or any other rights with respect to any Shared Contract that is thereto): the subject of an arrangement contemplated by Section 5.2(d)names “Townsquare”, “Cumulus” and “Citadel”.
Appears in 2 contracts
Sources: Asset Purchase and Exchange Agreement (Townsquare Media, LLC), Asset Purchase and Exchange Agreement (Townsquare Media, LLC)
Shared Contracts. (a) Any Contract with a Third Party that relates to both the NiSource Business and the Columbia Business (each such Contract, a “Shared Contract”) shall be handled as contemplated by Section 5.2(d) unless NiSource determines, in its sole discretion, that it is desirable to partially assign such Shared Contract as contemplated by Section 5.2(b) or to amend such Shared Contract as contemplated by Section 5.2(c).
(b) If any Shared Contract can be partially assigned by its terms and NiSource determines, in its sole discretion, that it is so desirable with With respect to such the Shared ContractContracts, NiSource the Seller, the Purchaser and their respective Affiliates shall assign such Shared Contract in part to Columbia, or another Columbia Party designated by Columbia, so that the Columbia Parties will be entitled to continue to derive benefits, and required to assume any obligations and economic burdens attributable to such benefits, following the benefits and rights relating to the Columbia Business and will assume their related portion of any Liabilities under such Shared Contract. If any such partial assignment requires the consent or approval of any Third Party or any other required action, the partial assignment of such Shared Contract shall be effected Closing in accordance with the terms of this AgreementSection 4.12. From the date hereof until the date that is twelve (12) months after the Closing Date, if and when such consent or approval is obtained or such other required action has been taken.
(c) If NiSource determines, in its sole discretion, that it is so desirable with respect to any Shared Contract, NiSource and Columbia shall, and shall cause the applicable NiSource Parties and Columbia Parties to, cooperate and their Affiliates shall use commercially reasonable efforts their Commercially Reasonable Efforts to enter into or to grant, and to cause each third party counterparty to a Shared Contract to enter into or to grant, any such new agreements or consents as are reasonably necessary to permit the Seller and its Affiliates or the Purchaser and its Affiliates (including the Transferred Entities) to derive such benefits, and assume such obligations and economic burdens, on an independent basis following the Closing; provided, that, none of the Seller, the Purchaser or any of their respective Affiliates shall be required to offer or grant any financial or nonfinancial accommodation in connection therewith that the granting Party in its reasonable judgement determines would be material. If, on the Closing Date, any such third party agreement or consent is not obtained, the Seller and the Purchaser shall cooperate in a mutually acceptable arrangement under which the Seller and its Affiliates or the Purchaser and its Affiliates (including the Transferred Entities) would, in compliance with Law, obtain the counterparty appropriate benefits and assume the related obligations and bear the related economic burdens in respect of such Shared Contracts, including by means of subcontracting, sublicensing or subleasing arrangements, or enforcement by the party to such Shared Contract to amend such Shared Contract so as to delete all obligations therefrom for the benefit (i) to the extent that such obligations relate to the NiSource Business, and enter into a new Contract with the applicable counterparty which solely relates to the Columbia Business, on substantially equivalent terms and conditions as are then in effect under such Shared Contract, or (ii) to the extent that such obligations relate to the Columbia Business, and enter into a new Contract with the applicable counterparty which solely relates to the NiSource Business, on substantially equivalent terms and conditions as are then in effect under such Shared Contract.
(d) With respect to each Shared Contract that is not partially assigned or amended as contemplated by Section 5.2(b) or Section 5.2(c), NiSource and Columbia shall, and shall cause the applicable NiSource Parties and Columbia Parties to, cooperate in any lawful and reasonable arrangement, to the extent so permitted under the terms of such Shared Contract and applicable Law:
(i) to provide the applicable NiSource Party the benefits and obligations of any such Shared Contract with respect to the NiSource Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the NiSource Party any or all of the rights and obligations with respect to such Shared Contract with respect to the NiSource Business, including, to the extent applicable and appropriate, upon the request and at the sole cost and expense of NiSource, CPG or the applicable CPG Parties using commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims under such Shared Contract with respect to the NiSource Business on the applicable NiSource Parties’ behalf where such right to pursue a breach is not passed on to NiSource. In any such arrangement, the NiSource Parties will, with respect to that portion expense) of the Shared Contract relating to the NiSource Business, other Party or any of its Affiliates (Aas applicable) bear the sole responsibility for completion of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of Columbia and the applicable Columbia Party related to such activities, (F) be entitled to continue to receive any correspondence or invoices delivered with respect to such Shared Contract and (G) be entitled to receive copies of all correspondence and invoices delivered to or by any Columbia Party with respect to such Shared Contract; and
(ii) to provide the applicable Columbia Party the benefits and obligations of any such Shared Contract with respect to the Columbia Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the Columbia Party any or all of the rights and obligations with respect to such Shared Contract with respect to the Columbia Business including, to the extent applicable and appropriate, upon the request and at the sole cost and expense of CPG, NiSource or the applicable NiSource Parties using commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims under such Shared Contract with respect to the CPG Business on the applicable CPG Parties’ behalf where such right to pursue a breach is not passed on to CPG. In any such arrangement, the Columbia Parties will, with respect to that portion of the Shared Contract relating to the Columbia Business, (A) bear the sole responsibility for completion of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of NiSource and the applicable NiSource Party related to such activities and (F) be entitled to receive copies of all correspondence and invoices delivered to or by any NiSource Party with respect to such Shared Contract.
(e) With respect to each Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d), NiSource, on behalf of itself and each of the NiSource Parties, shall indemnify, defend and hold harmless each of the Columbia Parties from and against any and all Expenses or Losses incurred or suffered by one or more of the Columbia Parties in connection with, relating to, arising out of or due to, directly or indirectly, that portion of the Shared Contract relating intended beneficiary thereof pursuant to the NiSource Business. With respect to each Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d), Columbia, on behalf of itself and each of the Columbia Parties, shall indemnify, defend and hold harmless each of the NiSource Parties from and against any and all Expenses or Losses incurred or suffered by one or more of the NiSource Parties in connection with, relating to, arising out of or due to, directly or indirectly, that portion of the Shared Contract relating to the Columbia Business.
(f) No NiSource Party or Columbia Party shall be required to pay any consideration to any Third Party in connection with implementing the arrangements contemplated by this Section 5.24.12.
(g) The parties shall follow the procedures specified in Section 10.2 in the event of any dispute regarding the rights and obligations of the NiSource Parties or the Columbia Parties with respect to any Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d).
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement (Magellan Health Inc), Stock and Asset Purchase Agreement (Molina Healthcare, Inc.)
Shared Contracts. Except as otherwise agreed by Seller and Buyer or as otherwise expressly provided in this Agreement or the Transaction Documents, until the expiration or termination date of the applicable Shared Contract (a) Any Contract with a Third Party that relates to both the NiSource Business and the Columbia Business (each such Contractassuming, a “Shared Contract”) shall be handled as contemplated by Section 5.2(d) unless NiSource determines, in its sole discretionfor these purposes, that it is desirable to partially assign such Shared Contract the then-current term in effect as contemplated by Section 5.2(b) or to amend such Shared Contract as contemplated by Section 5.2(c).
(b) If any Shared Contract can be partially assigned by its terms and NiSource determines, in its sole discretion, that it is so desirable with respect to such Shared Contract, NiSource shall assign such Shared Contract in part to Columbia, or another Columbia Party designated by Columbia, so that the Columbia Parties will be entitled of immediately prior to the benefits and rights relating to the Columbia Business and will assume their related portion of any Liabilities under such Shared Contract. If any such partial assignment requires the consent Closing is not renewed or approval of any Third Party or any other required actionextended), the partial assignment Parties shall (and shall cause their respective Affiliates to), if any, use reasonable best efforts to obtain or structure an arrangement for Buyer to receive the rights and benefits, and bear the obligations and burdens, of the portion of such Shared Contract that Buyer and Seller determine is reasonably necessary for Buyer to continue operation of the Transferred Assets and satisfy the Assumed Liabilities from and after the Closing, the intent being for Buyer to be in (or as close as reasonably possible to) the same position as if Buyer were a direct party to such portion of such Shared Contract; provided that Seller and its Affiliates shall not be effected in accordance with the terms of this Agreement, if and when such consent or approval is obtained or such other required to take any action has been taken.
(c) If NiSource determinesthat would, in the reasonable and good-faith judgment of Seller, constitute a breach or other contravention of the rights of any Person(s), be ineffective under, or contravene, applicable Law or any such Shared Contract or adversely affect the contractual rights of Seller or any of its sole discretionAffiliates. With respect to any Liability pursuant to, that it is so desirable with respect under or relating to any Shared Contract, NiSource and Columbia shallsuch Liability shall be allocated between Seller, on the one hand, and shall cause Buyer, on the applicable NiSource Parties and Columbia Parties toother hand, cooperate and use commercially reasonable efforts to enter into an arrangement with the counterparty to such Shared Contract to amend such Shared Contract so as to delete all obligations therefrom follows: (i) such Liability shall be allocated to Buyer (to the extent that such obligations relate it would otherwise constitute an Assumed Liability) or Seller (to the NiSource Businessextent it would otherwise constitute an Excluded Liability), and enter into a new Contract with the applicable counterparty which solely relates to the Columbia Business, on substantially equivalent terms and conditions as are then in effect under such Shared Contract, or (ii) if a Liability cannot be so allocated under clause (i), such Liability shall be allocated to Seller or Buyer, as the case may be, based on the relative proportion of total benefit received by Buyer and Seller under the relevant Shared Contract (taking into account the extent to which such Liability would otherwise constitute an Assumed Liability or an Excluded Liability hereunder), as reasonably and in good faith determined by Buyer and Seller consistent with this Agreement. Notwithstanding the foregoing, each of Seller and Buyer shall be responsible for any or all Liabilities arising from its (or its Affiliates’) own Taxes (except to the extent that such obligations relate to the Columbia Business, and enter into a new Contract with the applicable counterparty which solely relates to the NiSource Business, on substantially equivalent terms and conditions as are then in effect under such otherwise expressly contemplated by this Agreement) or direct or indirect breach of any Shared Contract.
(d) With respect to each Shared Contract that is not partially assigned or amended as contemplated by Section 5.2(b) or Section 5.2(c), NiSource and Columbia shall, and shall cause the applicable NiSource Parties and Columbia Parties to, cooperate in any lawful and reasonable arrangement, to the extent so permitted under the terms of such Shared Contract and applicable Law:
(i) to provide the applicable NiSource Party the benefits and obligations of any such Shared Contract with respect to the NiSource Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the NiSource Party any or all of the rights and obligations with respect to such Shared Contract with respect to the NiSource Business, including, to the extent applicable and appropriate, upon the request and at the sole cost and expense of NiSource, CPG or the applicable CPG Parties using commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims under such Shared Contract with respect to the NiSource Business on the applicable NiSource Parties’ behalf where such right to pursue a breach is not passed on to NiSource. In any such arrangement, the NiSource Parties will, with respect to that portion of the Shared Contract relating to the NiSource Business, (A) bear the sole responsibility for completion of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of Columbia and the applicable Columbia Party related to such activities, (F) be entitled to continue to receive any correspondence or invoices delivered with respect to such Shared Contract and (G) be entitled to receive copies of all correspondence and invoices delivered to or by any Columbia Party with respect to such Shared Contract; and
(ii) to provide the applicable Columbia Party the benefits and obligations of any such Shared Contract with respect to the Columbia Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the Columbia Party any or all of the rights and obligations with respect to such Shared Contract with respect to the Columbia Business including, to the extent applicable and appropriate, upon the request and at the sole cost and expense of CPG, NiSource or the applicable NiSource Parties using commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims under such Shared Contract with respect to the CPG Business on the applicable CPG Parties’ behalf where such right to pursue a breach is not passed on to CPG. In any such arrangement, the Columbia Parties will, with respect to that portion of the Shared Contract relating to the Columbia Business, (A) bear the sole responsibility for completion of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of NiSource and the applicable NiSource Party related to such activities and (F) be entitled to receive copies of all correspondence and invoices delivered to or by any NiSource Party with respect to such Shared Contract.
(e) With respect to each Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d), NiSource, on behalf of itself and each of the NiSource Parties, shall indemnify, defend and hold harmless each of the Columbia Parties from and against any and all Expenses or Losses incurred or suffered by one or more of the Columbia Parties in connection with, relating to, arising out of or due to, directly or indirectly, that portion of the Shared Contract relating to the NiSource Business. With respect to each Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d), Columbia, on behalf of itself and each of the Columbia Parties, shall indemnify, defend and hold harmless each of the NiSource Parties from and against any and all Expenses or Losses incurred or suffered by one or more of the NiSource Parties in connection with, relating to, arising out of or due to, directly or indirectly, that portion of the Shared Contract relating to the Columbia Business.
(f) No NiSource Party or Columbia Party shall be required to pay any consideration to any Third Party in connection with implementing the arrangements contemplated by this Section 5.2.
(g) The parties shall follow the procedures specified in Section 10.2 in the event of any dispute regarding the rights and obligations of the NiSource Parties or the Columbia Parties with respect to any Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d).
Appears in 2 contracts
Sources: Asset Purchase Agreement (Shenandoah Telecommunications Co/Va/), Asset Purchase Agreement (T-Mobile US, Inc.)
Shared Contracts. (a) Any Contract with a Third Party that relates to both the NiSource Business and the Columbia Business (each such Contract, a “Shared Contract”) shall be handled as contemplated by Section 5.2(d) unless NiSource determines, in its sole discretion, that it is desirable to partially assign such Shared Contract as contemplated by Section 5.2(b) or to amend such Shared Contract as contemplated by Section 5.2(c).
(b) If any Shared Contract can be partially assigned by its terms and NiSource determines, in its sole discretion, that it is so desirable with respect to such Shared Contract, NiSource shall assign such Shared Contract in part to Columbia, or another Columbia Party designated by Columbia, so that the Columbia Parties will be entitled to the benefits and rights relating to the Columbia Business and will assume their related portion of any Liabilities under such Shared Contract. If any such partial assignment requires the consent or approval of any Third Party or any other required action, the partial assignment of such Shared Contract shall be effected in accordance with the terms of this Agreement, if and when such consent or approval is obtained or such other required action has been taken.
(c) If NiSource determines, in its sole discretion, that it is so desirable with respect to any Shared Contract, NiSource and Columbia shall, and shall cause the applicable NiSource Parties and Columbia Parties to, cooperate and use commercially reasonable efforts to enter into an arrangement with the counterparty to such Shared Contract to amend such Shared Contract so as to delete all obligations therefrom (i) to the extent that such obligations relate to the NiSource Business, and enter into a new Contract with the applicable counterparty which solely relates to the Columbia Business, on substantially equivalent terms and conditions as are then in effect under such Shared Contract, or (ii) to the extent that such obligations relate to the Columbia Business, and enter into a new Contract with the applicable counterparty which solely relates to the NiSource Business, on substantially equivalent terms and conditions as are then in effect under such Shared Contract.
(d) With respect to each Shared Contract that is not partially assigned or amended as contemplated by Section 5.2(b) or Section 5.2(c), NiSource and Columbia shall, and shall cause the applicable NiSource Parties and Columbia Parties to, cooperate in any lawful and reasonable arrangement, to the extent so permitted under the terms of such Shared Contract and applicable Law:
(i) to provide the applicable NiSource Party the benefits and obligations of any such Shared Contract with respect to the NiSource Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the NiSource Party any or all of the rights and obligations with respect to such Shared Contract with respect to the NiSource Business, including, to the extent applicable and appropriate, upon the request and at the sole cost and expense of NiSource, CPG or the applicable CPG Parties using commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims under such Shared Contract with respect to the NiSource Business on the applicable NiSource Parties’ behalf where such right to pursue a breach is not passed on to NiSource. In any such arrangement, the NiSource Parties will, with respect to that portion of the Shared Contract relating to the NiSource Business, (A) bear the sole responsibility for completion of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of Columbia and the applicable Columbia Party related to such activities, (F) be entitled to continue to receive any correspondence or invoices delivered with respect to such Shared Contract and (G) be entitled to receive copies of all correspondence and invoices delivered to or by any Columbia Party with respect to such Shared Contract; and
(ii) to provide the applicable Columbia Party the benefits and obligations of any such Shared Contract with respect to the Columbia Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the Columbia Party any or all of the rights and obligations with respect to such Shared Contract with respect to the Columbia Business including, to the extent applicable and appropriate, upon the request and at the sole cost and expense of CPG, NiSource or the applicable NiSource Parties using commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims under such Shared Contract with respect to the CPG Business on the applicable CPG Parties’ behalf where such right to pursue a breach is not passed on to CPGBusiness. In any such arrangement, the Columbia Parties will, with respect to that portion of the Shared Contract relating to the Columbia Business, (A) bear the sole responsibility for completion of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of NiSource and the applicable NiSource Party related to such activities and (F) be entitled to receive copies of all correspondence and invoices delivered to or by any NiSource Party with respect to such Shared Contract.
(e) With respect to each Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d), NiSource, on behalf of itself and each of the NiSource Parties, shall indemnify, defend and hold harmless each of the Columbia Parties from and against any and all Expenses or Losses incurred or suffered by one or more of the Columbia Parties in connection with, relating to, arising out of or due to, directly or indirectly, that portion of the Shared Contract relating to the NiSource Business. With respect to each Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d), Columbia, on behalf of itself and each of the Columbia Parties, shall indemnify, defend and hold harmless each of the NiSource Parties from and against any and all Expenses or Losses incurred or suffered by one or more of the NiSource Parties in connection with, relating to, arising out of or due to, directly or indirectly, that portion of the Shared Contract relating to the Columbia Business.
(f) No NiSource Party or Columbia Party shall be required to pay any consideration to any Third Party in connection with implementing the arrangements contemplated by this Section 5.2.
(g) The parties shall follow the procedures specified in Section 10.2 in the event of any dispute regarding the rights and obligations of the NiSource Parties or the Columbia Parties with respect to any Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d).
Appears in 1 contract
Sources: Separation and Distribution Agreement (Columbia Pipeline Group, Inc.)
Shared Contracts. (a) Any Contract Subject to Section 2.10(d) and other than with a Third Party respect to the provision of Services under the Transitional Services Agreement or Shared Contracts that relates are sublicensed to both the NiSource Business Company and other Persons in the Columbia Business Company Group pursuant to the Patent and Know-How License Agreement (each such ContractPfizer as Licensor) or the Trademark and Copyright License Agreement, a “Shared Contract”) shall be handled as contemplated by Section 5.2(d) unless NiSource determinesfrom and after the Effective Date, Pfizer may, in its sole discretion, that it is desirable make available to partially assign such Shared Contract as contemplated by Section 5.2(b) or to amend such Shared Contract as contemplated by Section 5.2(c).
(b) If any Shared Contract can be partially assigned by its terms and NiSource determines, in its sole discretion, that it is so desirable with respect to such Shared Contract, NiSource shall assign such Shared Contract in part to Columbia, or another Columbia Party designated by Columbia, so that the Columbia Parties will be entitled to Company Group the benefits and rights relating under Shared Contracts to the Columbia Business extent such benefits and will assume their related portion of any Liabilities under such Shared Contractrights have historically been and currently are provided to the Animal Health Business. If any such partial assignment requires the consent or approval of any Third Party or any other required action, the partial assignment of such Shared Contract shall be effected in accordance with the terms of this Agreement, if and when such consent or approval is obtained or such other required action has been taken.
(c) If NiSource determines, in its sole discretion, that it is so desirable with With respect to any Shared ContractContracts made available to the Company Group pursuant to this Section 2.10(a), NiSource and Columbia shall, and shall cause the applicable NiSource Parties and Columbia Parties to, cooperate and use commercially reasonable efforts to enter into an arrangement with the counterparty to such Shared Contract to amend such Shared Contract so as to delete all obligations therefrom (i) to no Person in the extent that such obligations relate to the NiSource Business, and enter into a new Contract with the applicable counterparty which solely relates to the Columbia Business, on substantially equivalent terms and conditions as are then in effect under such Shared ContractCompany Group shall take any action, or refrain from taking any action, if (A) such action or inaction is reasonably likely to or does result in a breach on the part of any Person in the Pfizer Group under any Shared Contract and (B) such Person in the Company Group would otherwise be obligated to take or not take such action under the Shared Contract had such Person become severally liable under the Shared Contract at the Effective Date and (ii) each Person in the Company Group shall reasonably cooperate with Pfizer and, at Pfizer’s reasonable request, take such actions that are permissible and reasonably necessary or desirable to the extent ensure that such Pfizer is able to perform its obligations relate to the Columbia Business, and enter into a new constituting Shared Contract with the applicable counterparty which solely relates to the NiSource Business, on substantially equivalent terms and conditions as are then in effect Liabilities under such Shared Contract.
(db) With respect to each Shared Contract that is not partially assigned or amended as contemplated by Section 5.2(b) or Section 5.2(c), NiSource and Columbia shall, and shall cause the applicable NiSource Parties and Columbia Parties Liabilities pursuant to, cooperate in any lawful and reasonable arrangementunder or relating to a given Shared Contract, to the extent so permitted under the terms of such Shared Contract and applicable LawLiabilities shall be allocated, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, between the parties as follows:
(i) first, if a Liability is incurred exclusively in respect of a benefit received by one party or its Group, the party or Group receiving such benefit shall be responsible for such Liability and (ii) second, if a Liability cannot be exclusively allocated to provide one party or its Group under clause (i) above, such Liability shall be allocated among both parties and their respective Groups based on the applicable NiSource Party relative proportions of total benefit received (over the benefits term of the Shared Contract, measured as of the date of allocation) under the relevant Shared Contract. Notwithstanding the foregoing, each party and obligations of any such Shared Contract with respect to the NiSource Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the NiSource Party its Group shall be responsible for any or all Liabilities arising out of or resulting from such party’s or Group’s breach of the rights and obligations with respect to such Shared Contract with respect to the NiSource Business, including, to the extent applicable and appropriate, upon the request and at the sole cost and expense of NiSource, CPG or the applicable CPG Parties using commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims under such Shared Contract with respect to the NiSource Business on the applicable NiSource Parties’ behalf where such right to pursue a breach is not passed on to NiSource. In any such arrangement, the NiSource Parties will, with respect to that portion of the Shared Contract relating to the NiSource Business, (A) bear the sole responsibility for completion of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of Columbia and the applicable Columbia Party related to such activities, (F) be entitled to continue to receive any correspondence or invoices delivered with respect to such Shared Contract and (G) be entitled to receive copies of all correspondence and invoices delivered to or by any Columbia Party with respect to such Shared Contract; and
(ii) to provide the applicable Columbia Party the benefits and obligations of any such Shared Contract with respect to the Columbia Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the Columbia Party any or all of the rights and obligations with respect to such Shared Contract with respect to the Columbia Business including, to the extent applicable and appropriate, upon the request and at the sole cost and expense of CPG, NiSource or the applicable NiSource Parties using commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims under such Shared Contract with respect to the CPG Business on the applicable CPG Parties’ behalf where such right to pursue a breach is not passed on to CPG. In any such arrangement, the Columbia Parties will, with respect to that portion of the Shared Contract relating to the Columbia Business, (A) bear the sole responsibility for completion of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of NiSource and the applicable NiSource Party related to such activities and (F) be entitled to receive copies of all correspondence and invoices delivered to or by any NiSource Party with respect to such relevant Shared Contract.
(ec) With respect If Pfizer or any member of the Pfizer Group, on the one hand, or the Company or any member of the Company Group, on the other hand, receives any benefit or payment under any Shared Contract which was intended for the other party or its Group, Pfizer, on the one hand, or the Company, on the other hand, will use its respective commercially reasonable efforts, or will cause any member of its Group to use its commercially reasonable efforts, to deliver, transfer or otherwise afford such benefit or payment to the other party.
(d) It shall be the responsibility of the Company to obtain the agreement of the third party that is the counterparty to each Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d), NiSource, on behalf of itself and each to enter into a new Contract effective as of the NiSource PartiesEffective Date pursuant to which the Company and its Affiliates will receive substantially the same benefits provided by the Shared Contract to the Animal Health Business prior to the Effective Date. Except as expressly provided under the Transitional Services Agreement, shall indemnify, defend and hold harmless each none of Pfizer or any other member of the Columbia Parties from Pfizer Group shall be obligated to make available to the Company Group the benefits and against rights under any and all Expenses or Losses incurred or suffered by one or more of Shared Contracts. In no event shall Pfizer be liable to the Columbia Parties in connection with, relating to, Company for (i) any Liabilities arising out of such new Contracts or due to, directly or indirectly, that portion of the Shared Contract relating to the NiSource Business. With respect to each Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d), Columbia, on behalf of itself and each of the Columbia Parties, shall indemnify, defend and hold harmless each of the NiSource Parties from and against any and all Expenses or Losses incurred or suffered by one or more of the NiSource Parties in connection with, relating to, (ii) Liabilities arising out of or due to, directly or indirectly, that portion the failure of the Shared Contract relating Company to the Columbia Businessobtain any replacement contract.
(fe) No NiSource Party As promptly as practicable following the Effective Date, Pfizer shall calculate the aggregate balance of the cash, cash equivalents and short term investments of the Company Group (the “Company Cash Balance”), as of the close of business on the Effective Date after giving effect to the consummation of the transactions contemplated in this Agreement to occur on or Columbia Party prior to the Effective Date, including the payment to Pfizer of the Contribution Payment. The calculation of Company Cash Balance shall be required made by Pfizer in good faith and in its reasonable discretion and shall be final and binding on the Company. If the Company Cash Balance on the Effective Date was less than $300 million, then Pfizer shall, as promptly as practicable, contribute or otherwise transfer to pay any consideration the Company an amount equal to any Third Party in connection with implementing such deficit. The Company shall give Pfizer and its representatives access at all reasonable times to the arrangements contemplated by this Section 5.2Company’s properties, books, records, working papers and personnel to the extent requested to calculate the Company Cash Balance.
(g) The parties shall follow the procedures specified in Section 10.2 in the event of any dispute regarding the rights and obligations of the NiSource Parties or the Columbia Parties with respect to any Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d).
Appears in 1 contract
Shared Contracts. (a) Any Contract Subject to Section 2.10(d) and other than with a Third Party respect to the provision of Services under the Transitional Services Agreement or Shared Contracts that relates are sublicensed to both the NiSource Business Company and other Persons in the Columbia Business Company Group pursuant to the Patent and Know-How License Agreement (each such ContractPfizer as Licensor) or the Trademark and Copyright License Agreement, a “Shared Contract”) shall be handled as contemplated by Section 5.2(d) unless NiSource determinesfrom and after the Effective Date, Pfizer may, in its sole discretion, that it is desirable make available to partially assign such Shared Contract as contemplated by Section 5.2(b) or to amend such Shared Contract as contemplated by Section 5.2(c).
(b) If any Shared Contract can be partially assigned by its terms and NiSource determines, in its sole discretion, that it is so desirable with respect to such Shared Contract, NiSource shall assign such Shared Contract in part to Columbia, or another Columbia Party designated by Columbia, so that the Columbia Parties will be entitled to Company Group the benefits and rights relating under Shared Contracts to the Columbia Business extent such benefits and will assume their related portion of any Liabilities under such Shared Contractrights have historically been and currently are provided to the Animal Health Business. If any such partial assignment requires the consent or approval of any Third Party or any other required action, the partial assignment of such Shared Contract shall be effected in accordance with the terms of this Agreement, if and when such consent or approval is obtained or such other required action has been taken.
(c) If NiSource determines, in its sole discretion, that it is so desirable with With respect to any Shared ContractContracts made available to the Company Group pursuant to this Section 2.10(a), NiSource and Columbia shall, and shall cause the applicable NiSource Parties and Columbia Parties to, cooperate and use commercially reasonable efforts to enter into an arrangement with the counterparty to such Shared Contract to amend such Shared Contract so as to delete all obligations therefrom (i) to no Person in the extent that such obligations relate to the NiSource Business, and enter into a new Contract with the applicable counterparty which solely relates to the Columbia Business, on substantially equivalent terms and conditions as are then in effect under such Shared ContractCompany Group shall take any action, or refrain from taking any action, if (A) such action or inaction is reasonably likely to or does result in a breach on the part of any Person in the Pfizer Group under any Shared Contract and (B) such Person in the Company Group would otherwise be obligated to take or not take such action under the Shared Contract had such Person become severally liable under the Shared Contract at the Effective Date and (ii) each Person in the Company Group shall reasonably cooperate with Pfizer and, at Pfizer's reasonable request, take such actions that are permissible and reasonably necessary or desirable to the extent ensure that such Pfizer is able to perform its obligations relate to the Columbia Business, and enter into a new constituting Shared Contract with the applicable counterparty which solely relates to the NiSource Business, on substantially equivalent terms and conditions as are then in effect Liabilities under such Shared Contract.
(db) With respect to each Shared Contract that is not partially assigned or amended as contemplated by Section 5.2(b) or Section 5.2(c), NiSource and Columbia shall, and shall cause the applicable NiSource Parties and Columbia Parties Liabilities pursuant to, cooperate in any lawful and reasonable arrangementunder or relating to a given Shared Contract, to the extent so permitted under the terms of such Shared Contract and applicable Law:
Liabilities shall be allocated, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, between the parties as follows: (i) first, if a Liability is incurred exclusively in respect of a benefit received by one party or its Group, the party or Group receiving such benefit shall be responsible for such Liability and (ii) second, if a Liability cannot be exclusively allocated to provide one party or its Group under clause (i) above, such Liability shall be allocated among both parties and their respective Groups based on the applicable NiSource Party relative proportions of total benefit received (over the benefits term of the Shared Contract, measured as of the date of allocation) under the relevant Shared Contract. Notwithstanding the foregoing, each party and obligations of any such Shared Contract with respect to the NiSource Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the NiSource Party its Group shall be responsible for any or all Liabilities arising out of or resulting from such party's or Group's breach of the rights and obligations with respect to such Shared Contract with respect to the NiSource Business, including, to the extent applicable and appropriate, upon the request and at the sole cost and expense of NiSource, CPG or the applicable CPG Parties using commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims under such Shared Contract with respect to the NiSource Business on the applicable NiSource Parties’ behalf where such right to pursue a breach is not passed on to NiSource. In any such arrangement, the NiSource Parties will, with respect to that portion of the Shared Contract relating to the NiSource Business, (A) bear the sole responsibility for completion of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of Columbia and the applicable Columbia Party related to such activities, (F) be entitled to continue to receive any correspondence or invoices delivered with respect to such Shared Contract and (G) be entitled to receive copies of all correspondence and invoices delivered to or by any Columbia Party with respect to such Shared Contract; and
(ii) to provide the applicable Columbia Party the benefits and obligations of any such Shared Contract with respect to the Columbia Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the Columbia Party any or all of the rights and obligations with respect to such Shared Contract with respect to the Columbia Business including, to the extent applicable and appropriate, upon the request and at the sole cost and expense of CPG, NiSource or the applicable NiSource Parties using commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims under such Shared Contract with respect to the CPG Business on the applicable CPG Parties’ behalf where such right to pursue a breach is not passed on to CPG. In any such arrangement, the Columbia Parties will, with respect to that portion of the Shared Contract relating to the Columbia Business, (A) bear the sole responsibility for completion of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of NiSource and the applicable NiSource Party related to such activities and (F) be entitled to receive copies of all correspondence and invoices delivered to or by any NiSource Party with respect to such relevant Shared Contract.
(ec) With respect If Pfizer or any member of the Pfizer Group, on the one hand, or the Company or any member of the Company Group, on the other hand, receives any benefit or payment under any Shared Contract which was intended for the other party or its Group, Pfizer, on the one hand, or the Company, on the other hand, will use its respective commercially reasonable efforts, or will cause any member of its Group to use its commercially reasonable efforts, to deliver, transfer or otherwise afford such benefit or payment to the other party.
(d) It shall be the responsibility of the Company to obtain the agreement of the third party that is the counterparty to each Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d), NiSource, on behalf of itself and each to enter into a new Contract effective as of the NiSource PartiesEffective Date pursuant to which the Company and its Affiliates will receive substantially the same benefits provided by the Shared Contract to the Animal Health Business prior to the Effective Date. Except as expressly provided under the Transitional Services Agreement, shall indemnify, defend and hold harmless each none of Pfizer or any other member of the Columbia Parties from Pfizer Group shall be obligated to make available to the Company Group the benefits and against rights under any and all Expenses or Losses incurred or suffered by one or more of Shared Contracts. In no event shall Pfizer be liable to the Columbia Parties in connection with, relating to, Company for (i) any Liabilities arising out of such new Contracts or due to, directly or indirectly, that portion of the Shared Contract relating to the NiSource Business. With respect to each Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d), Columbia, on behalf of itself and each of the Columbia Parties, shall indemnify, defend and hold harmless each of the NiSource Parties from and against any and all Expenses or Losses incurred or suffered by one or more of the NiSource Parties in connection with, relating to, (ii) Liabilities arising out of or due to, directly or indirectly, that portion the failure of the Shared Contract relating Company to the Columbia Businessobtain any replacement contract.
(fe) No NiSource Party As promptly as practicable following the Effective Date, Pfizer shall calculate the aggregate balance of the cash, cash equivalents and short term investments of the Company Group (the "Company Cash Balance"), as of the close of business on the Effective Date after giving effect to the consummation of the transactions contemplated in this Agreement to occur on or Columbia Party prior to the Effective Date, including the payment to Pfizer of the Contribution Payment. The calculation of Company Cash Balance shall be required made by Pfizer in good faith and in its reasonable discretion and shall be final and binding on the Company. If the Company Cash Balance on the Effective Date was less than $300 million, then Pfizer shall, as promptly as practicable, contribute or otherwise transfer to pay any consideration the Company an amount equal to any Third Party in connection with implementing such deficit. The Company shall give Pfizer and its representatives access at all reasonable times to the arrangements contemplated by this Section 5.2Company's properties, books, records, working papers and personnel to the extent requested to calculate the Company Cash Balance.
(g) The parties shall follow the procedures specified in Section 10.2 in the event of any dispute regarding the rights and obligations of the NiSource Parties or the Columbia Parties with respect to any Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d).
Appears in 1 contract
Shared Contracts. (a) Any Contract with a Third Party that relates Notwithstanding anything to both the NiSource contrary herein, Shared Contracts and any rights or obligations thereunder shall not be deemed to be Business and Assets or Assets of the Columbia Business Company. Each Seller shall use commercially reasonable efforts to cause the Shared Contracts set forth on Section 5.08 of the Disclosure Schedule (each such Contract, a “Mirrored Shared ContractContracts”) to be replaced with separate Contracts that provide that the Company shall be handled as contemplated by Section 5.2(d) unless NiSource determines, in its sole discretion, that it is desirable to partially assign receive such Shared rights and obligations under a replacement Contract as contemplated by Section 5.2(b) or are substantially similar to amend those Contract rights and obligations utilized in the Business. The Parties shall cooperate and provide each other with reasonable assistance in effecting such separation of such Mirrored Shared Contract as contemplated by Section 5.2(c)Contracts prior to the Closing and for a period of three months following the Closing.
(b) If The Sellers shall be responsible for any Shared additional costs or fees arising from and under a replacement Contract can be partially assigned by its terms and NiSource determines, or in its sole discretion, that it is so desirable connection with respect to such the separation of a Mirrored Shared Contract, NiSource shall assign such if any, or in connection with any arrangement described in this Section 5.08. If the Parties are not able to effect the separation of a Mirrored Shared Contract in part to Columbia, or another Columbia Party designated by Columbia, so that the Columbia Parties will be entitled prior to the Closing, then, until any such Mirrored Shared Contract is separated, to the extent permissible under Law and under the terms of such Mirrored Shared Contract, each of the Parties shall (i) assume and perform the Liabilities and obligations under such Mirrored Shared Contract relating to its respective business or that of its Affiliates (and shall promptly reimburse the other Party for any expenses relating thereto incurred by either other Party or its Affiliates), allocated in accordance with Section 5.08(c), (ii) hold in trust for the benefit of the other Parties, and shall promptly forward to the other Parties, any monies or other benefits and rights received pursuant to such Mirrored Shared Contract relating to the Columbia Business respective businesses of the other Parties (or their respective Affiliates) and will assume their related portion (iii) endeavor to institute alternative arrangements intended to put the Parties in substantially the same economic position as if such Mirrored Shared Contract were separated; provided, however, that, if the Parties are not able to effect the separation of any Liabilities under Mirrored Shared Contract within three months after the Closing, then the Bally Entities shall have no further obligation to Purchaser or its Affiliates with respect thereto and may freely terminate such Mirrored Shared Contract; and provided, further, that any amounts owed by one Party (the “Payor Party”) to the other Party (the “Payee Party”) pursuant to Section 5.08(b)(i) may be satisfied at the Payor Party’s option by setting off such amounts against any amounts owed to it from the Payee Party pursuant to Section 5.08(b)(i). If any such partial assignment requires the consent or approval of any Third Party or any other required action, the partial assignment of such Shared Contract Purchaser shall be effected in accordance with the terms of this Agreement, if and when such consent solely responsible for replacing any Mirrored Shared Contracts not separated or approval is obtained or such other required action has been takentransitioned hereunder.
(c) If NiSource determines, in its sole discretion, that it is so desirable with With respect to any Liabilities pursuant to, under or relating to a given Shared Contract (“Shared Contractual Liabilities”), such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement, an Ancillary Agreement or a Mirrored Shared Contract, NiSource and Columbia shallbe allocated between the Sellers, on the one hand, and shall cause Purchaser and its Affiliates, on the applicable NiSource Parties and Columbia Parties toother hand, cooperate and use commercially reasonable efforts to enter into an arrangement with the counterparty to such Shared Contract to amend such Shared Contract so as to delete all obligations therefrom follows:
(i) first, to the extent a Liability is incurred exclusively in respect of a benefit received by the Excluded Business or the Business, such Liability shall be determined to be a Retained Liability or an Assumed Liability, respectively; and
(ii) second, to the extent a Liability cannot be so allocated under clause (i) above, such Liability shall be allocated to the Sellers, on the one hand, and to Purchaser and its Affiliates, on the other hand, as the case may be, based on the relative proportions of total benefits received ((A) to the extent that such obligations the Liabilities relate to a specific period, over such period and (B) otherwise over the NiSource Business, and enter into a new Contract with term of the applicable counterparty which solely relates Shared Contract, measured up to the Columbia date of the allocation) by the Excluded Business, on substantially equivalent terms and conditions as are then in effect under such Shared Contractthe one hand, or (ii) to the extent that such obligations relate to the Columbia Business, and enter into a new Contract with the applicable counterparty which solely relates to the NiSource Business, on substantially equivalent terms and conditions as are then in effect the other hand, under such the relevant Shared Contract.
(d) With From and after the Closing,
(i) until either (A) with respect to each any Member whose membership arises from a Shared Membership Contract that is not partially assigned a Paid-In-Full Membership Contract or amended as contemplated by Section 5.2(bprepaid Financed Membership Contract, the later of the expiration of such Contract in accordance with its terms or December 31, 2006, or (B) or Section 5.2(c)in the case of any other Shared Membership Contract, NiSource and Columbia shallDecember 31, 2006, each of the Parties will, and shall will cause the its applicable NiSource Parties and Columbia Parties Affiliates to, cooperate allow the use of the Facilities or Excluded Facilities, as the case may be, by Members or members of any Excluded Facilities who are parties to such Shared Membership Contracts as of the Closing in any lawful and reasonable arrangement, to the extent so permitted under accordance with the terms of such Shared Contract and applicable Law:Membership Contracts as in effect at Closing;
(iii) to provide the applicable NiSource Party the benefits and obligations of any such Shared Contract with respect to Shared Membership Contracts entered into by the NiSource Businessapplicable health club member at any Excluded Facility, including subcontractingthe Sellers shall use their commercially reasonable efforts to, licensingand to cause their respective Affiliates to, sublicensing, leasing notify the Company of any terminations of or subleasing to the NiSource Party any or all of other restrictions imposed on the rights and obligations of any health club members under such Shared Membership Contracts to use any Transferred Facility;
(iii) with respect to such Shared Contract with respect to the NiSource Business, including, to the extent applicable and appropriate, upon the request and at the sole cost and expense of NiSource, CPG or Membership Contracts entered into by the applicable CPG Parties using Member at any Transferred Facility, Purchaser and the Company shall use their commercially reasonable efforts to, and in a commercially reasonable time-frame to pursue breach cause their respective Affiliates to, notify the Sellers of warranty claims any terminations of or other restrictions imposed on the rights of any Members under such Shared Contract with respect Membership Contracts to use any Excluded Facilities or Deferred Facilities, as the NiSource Business on the applicable NiSource Parties’ behalf where such right to pursue a breach is not passed on to NiSource. In any such arrangement, the NiSource Parties will, with respect to that portion of the Shared Contract relating to the NiSource Business, (A) bear the sole responsibility for completion of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of Columbia and the applicable Columbia Party related to such activities, (F) be entitled to continue to receive any correspondence or invoices delivered with respect to such Shared Contract and (G) be entitled to receive copies of all correspondence and invoices delivered to or by any Columbia Party with respect to such Shared Contractcase may be; and
(iiiv) to provide the applicable Columbia Party the benefits and obligations of any such Shared Contract with respect to the Columbia Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the Columbia Party any or all none of the rights and obligations with respect to such Shared Contract with respect to the Columbia Business including, to the extent applicable and appropriate, upon the request and at the sole cost and expense of CPG, NiSource or the applicable NiSource Parties using commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims under such Shared Contract with respect to the CPG Business on the applicable CPG Parties’ behalf where such right to pursue a breach is not passed on to CPG. In any such arrangement, the Columbia Parties will, with respect to that portion of and the Parties will cause their respective Affiliates not to, enter into or renew any Shared Contract relating to the Columbia Business, Membership Contracts other than (A) bear renewals required by the sole responsibility for completion terms of the work such Shared Membership Contracts or provision of goods and services, (B) bear all Taxes with respect thereto renewals of Paid-In-Full Membership Contracts or arising therefromprepaid Financed Membership Contracts prior to December 31, (C) be solely entitled to all benefits thereof, economic or otherwise, including 2006 so long as the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of Party entering into such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of NiSource and renewals notifies the applicable NiSource Party related health club members that the right to use the other Party’s and its Affiliates’ Facilities or Excluded Facilities, as the case may be, by such activities and (F) be entitled to receive copies of all correspondence and invoices delivered to or by any NiSource Party with respect to such Shared Contracthealth club members will terminate on December 31, 2006.
(e) With respect to each Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d), NiSource, on behalf of itself and each of the NiSource Parties, shall indemnify, defend and hold harmless each of the Columbia Parties from and against any and all Expenses or Losses incurred or suffered by one or more of the Columbia Parties in connection with, relating to, arising out of or due to, directly or indirectly, that portion of the Shared Contract relating to the NiSource Business. With respect to each Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d), Columbia, on behalf of itself and each of the Columbia Parties, shall indemnify, defend and hold harmless each of the NiSource Parties from and against any and all Expenses or Losses incurred or suffered by one or more of the NiSource Parties in connection with, relating to, arising out of or due to, directly or indirectly, that portion of the Shared Contract relating to the Columbia Business.
(f) No NiSource Party or Columbia Party shall be required to pay any consideration to any Third Party in connection with implementing the arrangements contemplated by this Section 5.2.
(g) The parties shall follow the procedures specified in Section 10.2 in the event of any dispute regarding the rights and obligations of the NiSource Parties or the Columbia Parties with respect to any Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d).
Appears in 1 contract
Sources: Purchase Agreement (Bally Total Fitness Holding Corp)
Shared Contracts. (a) Any Contract with a Globe, on the one hand, and DCC, on the other hand, shall, unless otherwise agreed, (i) use commercially reasonable efforts to cause the Shared Contracts related to the Brazilian Business, except those set forth on Section 6.11(a) of the Disclosure Letter, to be split into separate contracts between the appropriate Third Party and Globe or GMI (with respect to the portion of the Shared Contracts that does not relate to the Brazilian Business) or applicable Brazilian Entity (with respect to the portion of the Shared Contracts that relates to both the NiSource Business Brazilian Business) and the Columbia Business (each such Contract, a “Shared Contract”ii) shall be handled as contemplated by Section 5.2(d) unless NiSource determines, in its sole discretion, that it is desirable to partially assign such Shared Contract as contemplated by Section 5.2(b) or to amend such Shared Contract as contemplated by Section 5.2(c).
(b) If any Shared Contract can be partially assigned by its terms and NiSource determines, in its sole discretion, that it is so desirable with respect to such Shared Contract, NiSource shall assign such Contracts set forth on Section 6.11(a) of the Disclosure Letter and Shared Contract in part to Columbia, or another Columbia Party designated by Columbia, so that the Columbia Parties will be entitled to the benefits and rights Contracts relating to the Columbia Business and will assume their related portion of any Liabilities under such Shared Contract. If any such partial assignment requires the consent or approval of any Third Party or any other required actionAlloy Business, the partial assignment of such Shared Contract shall be effected in accordance with the terms of this except as otherwise contemplated by an Ancillary Agreement, if and when such consent or approval is obtained or such other required action has been taken.
effect a lawful arrangement designed to provide for the applicable Subject Entity (c) If NiSource determinesexcluding for this purpose, in its sole discretionWV Alloys but not Alloy JV), that it is so desirable at no additional cost to Alloy JV with respect to any Shared Contract, NiSource the benefits after Closing that they would have received and Columbia shall, and shall cause to subject the applicable NiSource Parties Subject Entity directly to the liabilities thereunder, as if such Shared Contracts had been separated and Columbia Parties to, acquired by the applicable Subject Entity. Globe and DCC agree to cooperate and use commercially provide reasonable efforts assistance prior to enter into an arrangement with and for a period of six (6) months following the counterparty Closing to effect such separation. In the event and to the extent Globe and DCC are unable to obtain any required consent, approval or amendment required to separate the applicable Shared Contract to amend such Shared Contract so as to delete all obligations therefrom Contracts referenced in clause (i) above prior to the extent that Closing, (x) Globe and DCC shall use their reasonable best efforts in good faith to separate such obligations relate Shared Contracts as promptly as practicable and (y) if such separation is not obtained, the parties shall use reasonable best efforts in good faith to the NiSource Business, and enter into a new Contract with effect any lawful arrangement designed to provide for the applicable counterparty which solely relates Brazilian Entity, at no additional cost to the Columbia Business, on substantially equivalent terms and conditions as are then in effect under such Shared Contract, or (ii) to the extent that such obligations relate to the Columbia Business, and enter into a new Contract with the applicable counterparty which solely relates to the NiSource Business, on substantially equivalent terms and conditions as are then in effect under such Shared Contract.
(d) With respect to each Shared Contract that is not partially assigned or amended as contemplated by Section 5.2(b) or Section 5.2(c), NiSource and Columbia shall, and shall cause the applicable NiSource Parties and Columbia Parties to, cooperate in any lawful and reasonable arrangement, to the extent so permitted under the terms of such Shared Contract and applicable Law:
(i) to provide the applicable NiSource Party the benefits and obligations of any such Shared Contract with respect to the NiSource Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the NiSource Party any or all of the rights and obligations with respect to such Shared Contract with respect to the NiSource Business, including, to the extent applicable and appropriate, upon the request and at the sole cost and expense of NiSource, CPG or the applicable CPG Parties using commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims under such Shared Contract with respect to the NiSource Business on the applicable NiSource Parties’ behalf where such right to pursue a breach is not passed on to NiSource. In any such arrangement, the NiSource Parties will, with respect to that portion of the Shared Contract relating to the NiSource Business, (A) bear the sole responsibility for completion of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of Columbia and the applicable Columbia Party related to such activities, (F) be entitled to continue to receive any correspondence or invoices delivered with respect to such Shared Contract and (G) be entitled to receive copies of all correspondence and invoices delivered to or by any Columbia Party with respect to such Shared Contract; and
(ii) to provide the applicable Columbia Party the benefits and obligations of any such Shared Contract with respect to the Columbia Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the Columbia Party any or all of the rights and obligations with respect to such Shared Contract with respect to the Columbia Business including, to the extent applicable and appropriate, upon the request and at the sole cost and expense of CPG, NiSource or the applicable NiSource Parties using commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims under such Shared Contract with respect to the CPG Business on the applicable CPG Parties’ behalf where such right to pursue a breach is not passed on to CPG. In any such arrangement, the Columbia Parties will, with respect to that portion of the Shared Contract relating to the Columbia Business, (A) bear the sole responsibility for completion of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of NiSource and the applicable NiSource Party related to such activities and (F) be entitled to receive copies of all correspondence and invoices delivered to or by any NiSource Party with respect to such Shared Contract.
(e) With respect to each Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d), NiSource, on behalf of itself and each of the NiSource Parties, shall indemnify, defend and hold harmless each of the Columbia Parties from and against any and all Expenses or Losses incurred or suffered by one or more of the Columbia Parties in connection with, relating to, arising out of or due to, directly or indirectly, that portion of the Shared Contract relating to the NiSource Business. With respect to each Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d), Columbia, on behalf of itself and each of the Columbia Parties, shall indemnify, defend and hold harmless each of the NiSource Parties from and against any and all Expenses or Losses incurred or suffered by one or more of the NiSource Parties in connection with, relating to, arising out of or due to, directly or indirectly, that portion of the Shared Contract relating to the Columbia Business.
(f) No NiSource Party or Columbia Party shall be required to pay any consideration to any Third Party in connection with implementing the arrangements contemplated by this Section 5.2.
(g) The parties shall follow the procedures specified in Section 10.2 in the event of any dispute regarding the rights and obligations of the NiSource Parties or the Columbia Parties DCC with respect to any Contract related to the Brazilian Business, the benefits after Closing that they would have received, and to subject the applicable Brazilian Entity directly to the liabilities thereunder, as if, but only as if, such Shared Contract Contracts had been separated and acquired by the applicable Brazilian Entity.
(b) From and after the Closing, Globe and DCC shall each use its reasonable best efforts in good faith to effect any lawful arrangement designed to provide Alloy JV at no additional cost to Alloy JV with respect to (i) the Letter Agreement, dated April 11, 2006, between GMI and Norchem, Inc. and (ii) the Distribution and Supply Agreement, dated as of December 21, 2005, by and between GMI and Elkem Materials, Inc., the benefits after Closing that is Alloy JV would have received, and to subject Alloy JV to the subject of an arrangement contemplated liabilities thereunder as if such contract had been assigned by Section 5.2(d)GMI to Alloy JV.
Appears in 1 contract
Shared Contracts. (a) Any Contract with a Third Party that relates Some contracts, agreements and leases relating to both the NiSource Business and Stations, may be used in the Columbia Business operation of multiple stations or other business units (each such Contracteach, a “Shared Contract”). Schedule 1.3(a) sets forth all Shared Contracts relating to the Stations and that are material with respect to the applicable market. Except as provided by Schedule 1.2(c), as applicable, at the Closing, the rights and obligations under Shared Contracts shall be handled as contemplated equitably allocated among stations and such other business units in a manner reasonably determined by Section 5.2(dthe parties in accordance with the following equitable allocation principles:
(i) unless NiSource determines, any allocation expressly set forth in its sole discretion, that it is desirable to partially assign such the Shared Contract as contemplated shall control;
(ii) if none, then any allocation previously made by Section 5.2(bCumulus in the ordinary course of Station operations shall control;
(iii) or if none, then the quantifiable proportionate benefit to amend such Shared Contract as contemplated be received by Section 5.2(c)the parties after Closing shall control; and
(iv) if not quantifiable, then reasonable accommodation shall control.
(b) If any Shared Contract can be partially assigned by its terms and NiSource determines, in its sole discretion, that it is so desirable with respect to such Shared Contract, NiSource shall assign such Shared Contract in part to Columbia, or another Columbia Party designated by Columbia, so that the Columbia Parties will be entitled to the benefits and rights relating to the Columbia Business and will assume their related portion of any Liabilities under such Shared Contract. If any such partial assignment requires the consent or approval of any Third Party or any other required action, the partial assignment of such Shared Contract shall be effected in accordance with the terms of this Agreement, if and when such consent or approval is obtained or such other required action has been taken.
(c) If NiSource determines, in its sole discretion, that it is so desirable with respect to any Shared Contract, NiSource and Columbia shall, and shall cause the applicable NiSource Parties and Columbia Parties to, cooperate and use commercially reasonable efforts to enter into an arrangement with the counterparty to such Shared Contract to amend such Shared Contract so as to delete all obligations therefrom (i) to the extent that such obligations relate to the NiSource Business, and enter into a new Contract with the applicable counterparty which solely relates to the Columbia Business, on substantially equivalent terms and conditions as are then in effect under such Shared Contract, or (ii) to the extent that such obligations relate to the Columbia Business, and enter into a new Contract with the applicable counterparty which solely relates to the NiSource Business, on substantially equivalent terms and conditions as are then in effect under such Shared Contract.
(d) With respect to each Shared Contract that is not partially assigned or amended as contemplated by Section 5.2(b) or Section 5.2(c), NiSource and Columbia shall, and shall cause the applicable NiSource Parties and Columbia Parties to, cooperate in any lawful and reasonable arrangement, to the extent so permitted under the terms of such Shared Contract and applicable Law:
(i) to provide the applicable NiSource Party the benefits and obligations of any such Shared Contract with respect to the NiSource Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the NiSource Party any or all of the rights and obligations with respect to such Shared Contract with respect to the NiSource Business, including, to the extent applicable and appropriate, upon the request and at the sole cost and expense of NiSource, CPG or the applicable CPG Parties using commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims under such Shared Contract with respect to the NiSource Business on the applicable NiSource Parties’ behalf where such right to pursue a breach is not passed on to NiSource. In any such arrangement, the NiSource Parties will, with respect to that portion of the Shared Contract relating to the NiSource Business, (A) bear the sole responsibility for completion of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (Ei) promptly reimburse the reasonable costs parties shall cooperate with each other and expenses of Columbia and the applicable Columbia Party related to each contract counterparty in such activitiesallocation, (Fii) be entitled to continue to receive any correspondence or invoices delivered with respect to only the allocated portion of each such Shared Contract is included in the contracts to be assigned and assumed under this Agreement (without need for further action), and (Giii) be entitled to receive copies of all correspondence and invoices delivered to or by any Columbia Party with respect to such Shared Contract; and
(ii) to provide the applicable Columbia Party the benefits and obligations of any such Shared Contract with respect to the Columbia Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the Columbia Party any or all of the rights and obligations with respect to such Shared Contract with respect to the Columbia Business including, to the extent applicable and appropriate, upon the request and at the sole cost and expense of CPG, NiSource or the applicable NiSource Parties using parties shall use their commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims under ensure that such Shared Contract with respect to the CPG Business on the applicable CPG Parties’ behalf where such right to pursue a breach is not passed on to CPG. In any such arrangement, the Columbia Parties will, with respect to that portion allocation shall occur by termination of the Shared Contract relating to and execution of new contracts between each contract counterparty and Cumulus (but only if such contract is on terms at least as favorable than the Columbia Businessexisting contract), (A) bear but shall include the sole responsibility for completion of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination allocated portion of such Shared Contractcontracts will not include any group discounts or similar benefits specific to a party or its affiliates. Completion of documentation of any such allocation is not a condition to Closing; provided, (E) promptly reimburse the reasonable costs and expenses of NiSource and the applicable NiSource Party related to such activities and (F) be entitled to receive copies of all correspondence and invoices delivered to or by any NiSource Party however, that with respect to each such Shared Contract.
Contract which is not allocated at Closing pursuant to subsection (eiii) With respect to each Shared Contract that is the subject of an arrangement contemplated by this Section 5.2(d1.3(b), NiSourcethe parties shall cooperate to the extent feasible in effecting a lawful and commercially reasonable arrangement under which acquiring party shall receive the allocable benefits thereunder from and after Closing, on behalf of itself and each to the extent of the NiSource Partiesallocable benefits received, Townsquare shall indemnify, defend pay and hold harmless each of the Columbia Parties perform Cumulus’s obligations arising thereunder from and against any after Closing in accordance with its terms, until new documentation effecting the allocation described in this Section 1.3 is executed and all Expenses or Losses incurred or suffered by one or more of the Columbia Parties in connection with, relating to, arising out of or due to, directly or indirectly, that portion of the Shared Contract relating to the NiSource Businessdelivered. With respect to each Shared Contract that is Contract, each party shall be responsible for all costs associated with the subject of an arrangement contemplated by Section 5.2(d)portion allocated to such party, Columbia, on behalf of itself and each of the Columbia Parties, shall indemnify, defend indemnify and hold harmless each the other party for any losses associated with the performance of such party for the portion allocated to such party.
(c) In the event that the terms of any Shared Contract prohibits the allocation contemplated by this Section 1.3, the parties shall use commercially reasonable efforts to provide the benefits and obligations of the NiSource Parties from and against any and all Expenses or Losses incurred or suffered by one or more of the NiSource Parties in connection with, relating to, arising out of or due to, directly or indirectly, that portion of the Shared Contract relating that would have been allocated to the Columbia Businessa party hereunder but for any such prohibition.
(fd) No NiSource Party or Columbia Party Notwithstanding the foregoing, in no event shall be required to pay any consideration a Shared Contract relate to any Third Party in connection with implementing the arrangements contemplated by this Section 5.2.
(g) The parties shall follow the procedures specified in Section 10.2 in the event employees of any dispute regarding the rights and obligations of the NiSource Parties Cumulus, or the Columbia Parties names “Cumulus” and “Citadel” (or any other rights with respect to any Shared Contract that is the subject of an arrangement contemplated by Section 5.2(dthereto).
Appears in 1 contract
Shared Contracts. Prior to Closing, Seller and Buyer shall cooperate in good faith to determine a mutually acceptable plan for separating the Shared Contracts, including (a) Any Contract with a Third Party to identify any additional Shared Contracts that relates to both the NiSource Business and the Columbia Business (each such Contract, a “Shared Contract”) shall be handled separated prior to Closing and (b) to seek to apportion any increased costs to the Company and Seller and its Affiliates (other than the Company) resulting from separating the Shared Contracts proportionally based on their respective allocated assets, licenses, services or financial commitments. Except as contemplated by set forth in this Section 5.2(d) unless NiSource determines4.16 or otherwise agreed in writing between Seller and Buyer and subject to the Transition Services Agreement and Day 1 Action Plan, the parties hereto shall use their commercially reasonable efforts to procure that the above-mentioned Shared Contract shall be assigned, transferred and conveyed to the Company, in its sole discretioneach case, that it is desirable only with respect to partially assign those parts of such Shared Contract as contemplated by Section 5.2(b) that primarily relate to the Company, if so assignable, transferable or conveyable, or appropriately amended prior to amend the Closing, so that the Company shall be entitled to the rights and benefit of those parts of the Shared Contract and shall assume the portion of any liabilities, in each case, that relate primarily to the Company under such Shared Contract as contemplated by Section 5.2(cContract; provided, that (i) in no event shall any Person be required to assign (or amend).
(b) If , either in its entirety or in part, any Shared Contract can if an attempted assignment or amendment, without the consent of, or other action by, any third party, would constitute a breach thereunder or in any way adversely affect the rights of the Company or Seller or any of their respective Affiliates thereunder, and (ii) if any Shared Contract cannot be so partially assigned by its terms and NiSource determines, in its sole discretion, that it is so desirable with respect to such Shared Contract, NiSource shall assign such Shared Contract in part to Columbiaor otherwise, or another Columbia Party designated by Columbiacannot be amended, so that the Columbia Parties will be entitled to the benefits and rights relating to the Columbia Business and will assume their related portion of any Liabilities under such Shared Contract. If any such partial assignment requires the consent or approval of any Third Party or any other required action, the partial assignment of such Shared Contract shall be effected in accordance with the terms of this Agreement, if and when without such consent or approval is obtained or such other required action has been taken.
(c) If NiSource determinesaction, in its sole discretion, that it is so desirable with respect to any Shared Contract, NiSource Seller and Columbia shall, and Buyer shall cause the applicable NiSource Parties and Columbia Parties to, cooperate and use commercially reasonable efforts to enter into an arrangement with the counterparty to such Shared Contract to amend such Shared Contract so as to delete all obligations therefrom (i) to the extent that such obligations relate to the NiSource Business, and enter into a new Contract with the applicable counterparty which solely relates to the Columbia Business, on substantially equivalent terms and conditions as are then in effect under such Shared Contract, or (ii) to the extent that such obligations relate to the Columbia Business, and enter into a new Contract with the applicable counterparty which solely relates to the NiSource Business, on substantially equivalent terms and conditions as are then in effect under such Shared Contract.
(d) With respect to each Shared Contract that is not partially assigned or amended as contemplated by Section 5.2(b) or Section 5.2(c), NiSource and Columbia shall, and shall cause the applicable NiSource Parties and Columbia Parties to, cooperate in any lawful and reasonable arrangement, to the extent so permitted under the terms of such Shared Contract and applicable Law:
(i) to provide the applicable NiSource Party the benefits and obligations of any such Shared Contract with respect to the NiSource Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the NiSource Party any or all of the rights and obligations with respect to such Shared Contract with respect to the NiSource Business, including, to the extent applicable and appropriate, upon the request and at the sole cost and expense of NiSource, CPG or the applicable CPG Parties using commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims under such Shared Contract with respect to the NiSource Business on the applicable NiSource Parties’ behalf where such right to pursue a breach is not passed on to NiSource. In any such arrangement, the NiSource Parties will, with respect to that portion of the Shared Contract relating to the NiSource Business, (A) bear the sole responsibility for completion of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of Columbia and the applicable Columbia Party related to such activities, (F) be entitled to continue to receive any correspondence or invoices delivered with respect to such Shared Contract and (G) be entitled to receive copies of all correspondence and invoices delivered to or by any Columbia Party with respect to such Shared Contract; and
(ii) to provide the applicable Columbia Party the benefits and obligations of any such Shared Contract with respect to the Columbia Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the Columbia Party any or all of the rights and obligations with respect to such Shared Contract with respect to the Columbia Business including, to the extent applicable and appropriate, upon the request and at the sole cost and expense of CPG, NiSource or the applicable NiSource Parties using commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims under such Shared Contract with respect to the CPG Business on the applicable CPG Parties’ behalf where such right to pursue a breach is not passed on to CPG. In any such arrangement, the Columbia Parties will, with respect to that portion of the Shared Contract relating to the Columbia Business, (A) bear the sole responsibility for completion of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of NiSource and the applicable NiSource Party related to such activities and (F) be entitled to receive copies of all correspondence and invoices delivered to or by any NiSource Party with respect to such Shared Contract.
(e) With respect to each Shared Contract that is the subject of an mutually agreeable arrangement contemplated by Section 5.2(d), NiSource, on behalf of itself and each of the NiSource Parties, shall indemnify, defend and hold harmless each of the Columbia Parties from and against any and all Expenses or Losses incurred or suffered by one or more of the Columbia Parties in connection with, relating to, arising out of or due to, directly or indirectly, that portion of the Shared Contract relating to the NiSource Business. With respect to each Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d), Columbia, on behalf of itself and each of the Columbia Parties, shall indemnify, defend and hold harmless each of the NiSource Parties from and against any and all Expenses or Losses incurred or suffered by one or more of the NiSource Parties in connection with, relating to, arising out of or due to, directly or indirectly, that portion of the Shared Contract relating to the Columbia Business.
(f) No NiSource Party or Columbia Party shall be required to pay any consideration to any Third Party in connection with implementing the arrangements contemplated by this Section 5.2.
(g) The parties shall follow the procedures specified in Section 10.2 in the event of any dispute regarding the rights and obligations of the NiSource Parties or the Columbia Parties with respect to any Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d).under
Appears in 1 contract
Sources: Stock Purchase Agreement (Vse Corp)
Shared Contracts. (a) Any Contract with a Third Party that relates to both From the NiSource Business and date of this Agreement until the Columbia Business (each such ContractClosing, a “Shared Contract”) shall be handled as contemplated by Section 5.2(d) unless NiSource determines, in its sole discretion, that it is desirable to partially assign such Shared Contract as contemplated by Section 5.2(b) or to amend such Shared Contract as contemplated by Section 5.2(c).
(b) If any Shared Contract can be partially assigned by its terms and NiSource determines, in its sole discretion, that it is so desirable with respect to such each of the Shared ContractContracts, NiSource shall assign such Shared Contract including those listed in part to ColumbiaSection 5.7(a) of the Seller Disclosure Schedules, or another Columbia Party designated by Columbia, so that the Columbia Parties will be entitled to the benefits and rights relating to the Columbia Business and will assume their related portion of any Liabilities under such Shared Contract. If any such partial assignment requires the consent or approval of any Third Party or any other required action, the partial assignment of such Shared Contract shall be effected in accordance with the terms of this Agreement, if and when such consent or approval is obtained or such other required action has been taken.
(c) If NiSource determines, in its sole discretion, that it is so desirable with respect to any Shared Contract, NiSource and Columbia Seller shall, and Seller shall cause the applicable NiSource Parties and Columbia Parties its Affiliates to, cooperate and use commercially reasonable efforts to enter into an arrangement with cause the counterparty to such Shared Contract Contracts to amend consent to the assignment of those rights and obligations of Seller and its applicable Affiliates under such Shared Contracts to the extent related to the Company and its Subsidiaries or the Business, or to otherwise reasonably cooperate with Purchaser in Purchaser’s efforts to enter into replace such Shared Contract so as to delete all obligations therefrom into a stand-alone new Contract between a member of the Company Group and such counterparty on substantially the same terms (i) to the extent that such obligations relate relating to the NiSource Company Group or the Business, and enter ) as those that exist under such Shared Contract (such assignment or entry into a new Contract with the applicable counterparty which solely relates to the Columbia Business, on substantially equivalent terms and conditions as are then in effect under such Shared Contract, the “Contract Separation”); provided, however, that nothing in this Section 5.7(a) shall require Purchaser, Seller or any of their Affiliates to pay any fee or other payment or consideration (ii) monetary or otherwise), take any Extraordinary Action, make a concession to any third party or provide any material right to any third party, make any material amendments or material modifications in any manner materially adverse to the extent that such obligations relate to the Columbia Business, and enter into a new Contract with the applicable counterparty which solely relates to the NiSource Business, on substantially equivalent terms and conditions as are then in effect under such Shared Contract.
(d) With respect to each Shared Contract that is not partially assigned or amended as contemplated by Section 5.2(b) or Section 5.2(c), NiSource and Columbia shall, and shall cause the applicable NiSource Parties and Columbia Parties to, cooperate in any lawful and reasonable arrangement, to the extent so permitted under the terms of such Shared Contract and applicable Law:
(i) to provide the applicable NiSource Party the benefits and obligations of any such Shared Contract with respect to the NiSource Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the NiSource Party any or all of the rights and obligations related to Seller or any of its Affiliates (other than the Business), or otherwise incur any liability or out-of-pocket expense, in each case, in connection with respect to such the obligations or efforts set forth in this Section 5.7(a) (together the “Pre-Closing Proviso”); provided, further, that in the case of Shared Contract with respect Contracts which are Contracts primarily for the provision of material Intellectual Property Rights to the NiSource BusinessBusiness or any Company Group, including, to the extent applicable Seller and appropriate, upon the request and at the sole cost and expense of NiSource, CPG or the applicable CPG Parties using commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims under such Shared Contract with respect to the NiSource Business on the applicable NiSource Parties’ behalf where such right to pursue a breach is not passed on to NiSource. In any such arrangement, the NiSource Parties will, with respect to that portion of the Shared Contract relating to the NiSource Business, (A) bear the sole responsibility for completion of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of Columbia and the applicable Columbia Party related to such activities, (F) be entitled to continue to receive any correspondence or invoices delivered with respect to such Shared Contract and (G) be entitled to receive copies of all correspondence and invoices delivered to or by any Columbia Party with respect to such Shared Contract; and
(ii) to provide the applicable Columbia Party the benefits and obligations of any such Shared Contract with respect to the Columbia Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the Columbia Party any or all of the rights and obligations with respect to such Shared Contract with respect to the Columbia Business including, to the extent applicable and appropriate, upon the request and at the sole cost and expense of CPG, NiSource or the applicable NiSource Parties using commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims under such Shared Contract with respect to the CPG Business on the applicable CPG Parties’ behalf where such right to pursue a breach is not passed on to CPG. In any such arrangement, the Columbia Parties will, with respect to that portion of the Shared Contract relating to the Columbia Business, (A) bear the sole responsibility for completion of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of NiSource and the applicable NiSource Party related to such activities and (F) be entitled to receive copies of all correspondence and invoices delivered to or by any NiSource Party with respect to such Shared Contract.
(e) With respect to each Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d), NiSource, on behalf of itself and each of the NiSource Parties, shall indemnify, defend and hold harmless each of the Columbia Parties from and against any and all Expenses or Losses incurred or suffered by one or more of the Columbia Parties in connection with, relating to, arising out of or due to, directly or indirectly, that portion of the Shared Contract relating to the NiSource Business. With respect to each Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d), Columbia, on behalf of itself and each of the Columbia Parties, shall indemnify, defend and hold harmless each of the NiSource Parties from and against any and all Expenses or Losses incurred or suffered by one or more of the NiSource Parties in connection with, relating to, arising out of or due to, directly or indirectly, that portion of the Shared Contract relating to the Columbia Business.
(f) No NiSource Party or Columbia Party its Affiliates shall be required to pay any consideration to any Third Party one-time cost or expense reasonably required in connection with implementing the arrangements contemplated Contract Separation of such Shared Contracts (except for any increases in the cost of licensing any such Intellectual Property Rights as a result of such Contract Separation, which shall be borne by this Section 5.2the relevant licensee). If the parties hereto receive such consent to the partial assignment of such portion of such rights and obligations of Seller and its Affiliates under such Shared Contract (or if no such consent is required), subject to the Pre-Closing Proviso, if applicable, Seller or its Affiliates shall assign such portion of such Shared Contract to the Company in accordance with the terms thereunder, to the extent permitted under applicable Law.
(gb) The parties shall follow For any Shared Contract for which the procedures specified arrangements described in Section 10.2 5.7(a) could not be entered into prior to the Closing (such Shared Contract, a “Stranded Shared Contract”), then from the Closing until the earliest of (x) completing the Contract Separation, (y) the expiration of the Stranded Shared Contract in accordance with its terms (without any extensions or renewals thereof), and (z) the event date that is eighteen (18) months following the Closing Date, each of Purchaser and its Affiliates, on the one hand, and Seller and its Affiliates, on the other hand, shall use commercially reasonable efforts to continue the Contract Separation of such Stranded Shared Contract and cooperate with Purchaser in a mutually agreeable arrangement under which Purchaser and all applicable Group Companies would obtain all of the benefits and assume all of the obligations and liabilities to the extent related to the Company Group or the Business under such Stranded Shared Contract to the extent permitted under applicable Law (such arrangement, a “Back-to-Back Arrangement”); provided, however, that nothing in this Section 5.7(b) shall require Purchaser, Seller or any dispute regarding of their Affiliates to pay any fee or other payment or consideration (monetary or otherwise), take any Extraordinary Actions, make a concession to any third party or provide any material right to any third party, make any material amendments or material modifications in any manner materially adverse to the extent of the rights and obligations related to Seller or any of its Affiliates (other than the NiSource Parties Business), or otherwise incur any liability or expense, in each case, in connection with the Columbia Parties obligations or efforts set forth in this Section 5.7(b) (together the “Post-Closing Proviso”); provided, further, that in the case of Stranded Contracts which are Contracts primarily for the provision of material Intellectual Property Rights to the Business or any Company Group, Seller and its Affiliates shall be required to pay any one-time cost or expense reasonably required in connection with respect to the Contract Separation and/or the provision of a Back-to-Back Arrangement of such Stranded Contracts (except for any increases in the cost of licensing any such Intellectual Property Rights as a result of such Contract Separation or provision of such Back-to-Back Arrangement, which shall be borne by the relevant licensee). Following the date hereof, other than as set forth in Section 5.7(a) neither Seller nor the Company shall, and each shall cause their Affiliates not to, enter into, terminate (other than expirations in accordance with their terms) or amend any Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d)Contract.
Appears in 1 contract
Shared Contracts. (a) Any Each of Seller and Buyer will, in cooperation with the other, use its commercially reasonable efforts both before and after the Closing to effect the assignment and assumption of the Shared Contract with a Third Party that relates to both the NiSource Business Rights and the Columbia Business Shared Contract Obligations to a Group Company or to Seller, as applicable and as agreed by Seller and Buyer, under the Shared Contracts pursuant to this Agreement and the Transition Services Agreement by, among other things, amending the Shared Contracts to separately assign and assume the Shared Contract Rights and the Shared Contract Obligations to a Group Company or Seller, as applicable and as agreed by Seller and Buyer, and, if necessary or deemed desirable by Seller and Buyer, to execute new contracts with respect thereto; provided, that if commercially reasonable efforts require the payment of any consideration (monetary or otherwise) to, or the concession or provision of any right to, or the amendment or modification in any manner adverse to any Group Company or Seller, of any Shared Contract with, any third party, Seller and Buyer shall cooperate in good faith and assign any additional liabilities or benefits as a result of such assignment and assumption based upon a proportionate amount of the Shared Contract Rights and Shared Contract Obligations of each such Contract, a “party as agreed in good faith between Buyer and Seller pursuant to the applicable Shared Contract”) . Buyer and Seller shall be handled cooperate to mitigate any losses to any Group Company or Seller, as contemplated by applicable, as a result of each party’s obligations pursuant to this Section 5.2(d) unless NiSource determines, in its sole discretion, that it is desirable to partially assign such Shared Contract as contemplated by Section 5.2(b) or to amend such Shared Contract as contemplated by Section 5.2(c).
(b) 7.4. If any Shared Contract can Rights to be partially assumed by a Group Company are not assigned by its terms to a Group Company prior to or on the Closing Date, and NiSource determinesunless the parties otherwise agree in writing, in its sole discretion, that it is so desirable with respect to such during the remaining term of the applicable Shared Contract, NiSource shall assign such Shared Contract in part not to Columbia, or another Columbia Party designated by Columbia, so that the Columbia Parties will be entitled to the benefits and rights relating to the Columbia Business and will assume their related portion of any Liabilities under such Shared Contract. If any such partial assignment requires the consent or approval of any Third Party or any other required actionexceed twelve (12) months, the partial assignment of such Shared Contract Parties shall be effected in accordance with the terms of this Agreement, if and when such consent or approval is obtained or such other required action has been taken.
(c) If NiSource determines, in its sole discretion, that it is so desirable with respect to any Shared Contract, NiSource and Columbia shall, and shall cause the applicable NiSource Parties and Columbia Parties to, cooperate and use their respective commercially reasonable efforts to enter into an arrangement with the counterparty to such Shared Contract to amend such Shared Contract so as to delete all obligations therefrom (i) to the extent that such obligations relate to the NiSource Business, and enter into a new Contract with allow the applicable counterparty which solely relates to the Columbia Business, on substantially equivalent terms and conditions as are then in effect under such Shared Contract, or (ii) to the extent that such obligations relate to the Columbia Business, and enter into a new Contract with the applicable counterparty which solely relates to the NiSource Business, on substantially equivalent terms and conditions as are then in effect under such Shared Contract.
(d) With respect to each Shared Contract that is not partially assigned or amended as contemplated by Section 5.2(b) or Section 5.2(c), NiSource and Columbia shall, and shall cause the applicable NiSource Parties and Columbia Parties to, cooperate in any lawful and reasonable arrangementGroup Company, to the extent so permitted under by applicable Law and to the terms extent reasonably within the contractual or other ability or control of Seller or its Affiliates, as the case may be, to receive such Shared Contract and applicable Law:
(i) Rights, subject to provide such Group Company’s satisfaction of all Shared Contract Obligations thereunder; provided, however, that the applicable NiSource Party Group Company shall reimburse Seller or its applicable Affiliate for any reasonable and documented out-of-pocket expenses (which shall not include, for the benefits and obligations avoidance of doubt, any costs associated with personnel) incurred in connection with any such arrangement to the extent such services and costs are not otherwise contemplated by the Transition Services Agreement. If any Shared Contract with respect Rights to be assumed by Seller are not assigned to Seller prior to or on the NiSource BusinessClosing Date, including subcontractingand unless the parties otherwise agree in writing, licensing, sublicensing, leasing or subleasing to during the NiSource Party any or all remaining term of the rights and obligations with respect applicable Shared Contract, not to such Shared Contract with respect exceed twelve (12) months, the Parties shall use their respective commercially reasonable efforts to the NiSource Business, includingallow Seller, to the extent permitted by applicable Law and appropriateto the extent reasonably within the contractual or other ability or control of any Group Company or its Affiliates, upon as the request and at the sole cost and expense of NiSourcecase may be, CPG or the applicable CPG Parties using commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims under receive such Shared Contract Rights, subject to Seller’s satisfaction of all Shared Contract Obligations thereunder; provided, however, that Seller shall reimburse such Group Company or its applicable Affiliate for any reasonable and documented out-of-pocket expenses (which shall not include, for the avoidance of doubt, any costs associated with respect to the NiSource Business on the applicable NiSource Parties’ behalf where such right to pursue a breach is not passed on to NiSource. In personnel) incurred in connection with any such arrangement, the NiSource Parties will, with respect to that portion of the Shared Contract relating to the NiSource Business, (A) bear the sole responsibility for completion of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of Columbia and the applicable Columbia Party related to such activities, (F) be entitled to continue to receive any correspondence or invoices delivered with respect to such Shared Contract and (G) be entitled to receive copies of all correspondence and invoices delivered to or by any Columbia Party with respect to such Shared Contract; and
(ii) to provide the applicable Columbia Party the benefits and obligations of any such Shared Contract with respect to the Columbia Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the Columbia Party any or all of the rights and obligations with respect to such Shared Contract with respect to the Columbia Business including, arrangement to the extent applicable such services and appropriatecosts are not otherwise contemplated by the Transition Services Agreement. Notwithstanding the foregoing covenants of each Party contained in this Section 7.4, upon Buyer and Seller agree that the request and at the sole cost and expense of CPG, NiSource or the applicable NiSource Parties using commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims under such Shared Contract with respect to the CPG Business Contracts set forth on the applicable CPG Parties’ behalf where such right to pursue a breach is not passed on to CPG. In any such arrangement, the Columbia Parties will, with respect to that portion Schedule 7.4 of the Shared Contract relating Company Disclosure Schedules shall be transferred to the Columbia Business, (A) bear the sole responsibility for completion of the work or provision of goods a Group Company and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) shall be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods an asset and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination liability of such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of NiSource and the applicable NiSource Party related to such activities and (F) be entitled to receive copies of all correspondence and invoices delivered to or by any NiSource Party with respect to such Shared ContractGroup Company.
(e) With respect to each Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d), NiSource, on behalf of itself and each of the NiSource Parties, shall indemnify, defend and hold harmless each of the Columbia Parties from and against any and all Expenses or Losses incurred or suffered by one or more of the Columbia Parties in connection with, relating to, arising out of or due to, directly or indirectly, that portion of the Shared Contract relating to the NiSource Business. With respect to each Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d), Columbia, on behalf of itself and each of the Columbia Parties, shall indemnify, defend and hold harmless each of the NiSource Parties from and against any and all Expenses or Losses incurred or suffered by one or more of the NiSource Parties in connection with, relating to, arising out of or due to, directly or indirectly, that portion of the Shared Contract relating to the Columbia Business.
(f) No NiSource Party or Columbia Party shall be required to pay any consideration to any Third Party in connection with implementing the arrangements contemplated by this Section 5.2.
(g) The parties shall follow the procedures specified in Section 10.2 in the event of any dispute regarding the rights and obligations of the NiSource Parties or the Columbia Parties with respect to any Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d).
Appears in 1 contract
Shared Contracts. (a) Any Contract with a Third Party that relates With respect to both each of the NiSource Business and the Columbia Business contracts listed on Schedule 5.13 (each such Contracteach, a “Shared Contract”), subject to Section 5.13(c) and except as specifically described on Schedule 5.13, Buyer and the Sellers shall be handled as contemplated by Section 5.2(d) unless NiSource determines, in its sole discretion, that it is desirable to partially assign such Shared Contract as contemplated by Section 5.2(b) or to amend such Shared Contract as contemplated by Section 5.2(c).
(b) If any Shared Contract can be partially assigned by its terms and NiSource determines, in its sole discretion, that it is so desirable with respect to such Shared Contract, NiSource shall assign such Shared Contract in part to Columbia, or another Columbia Party designated by Columbia, so that the Columbia Parties will be entitled to the benefits and rights relating to the Columbia Business and will assume use their related portion of any Liabilities under such Shared Contract. If any such partial assignment requires the consent or approval of any Third Party or any other required action, the partial assignment of such Shared Contract shall be effected in accordance with the terms of this Agreement, if and when such consent or approval is obtained or such other required action has been taken.
(c) If NiSource determines, in its sole discretion, that it is so desirable with respect to any Shared Contract, NiSource and Columbia shall, and shall cause the applicable NiSource Parties and Columbia Parties to, cooperate and use commercially reasonable efforts to enter into an arrangement with arrange for one of the counterparty Companies or Subsidiaries to such Shared Contract to amend such Shared Contract so as to delete all obligations therefrom (i) to the extent that such obligations relate to the NiSource Business, and enter into a new Contract contract with the applicable counterparty which solely relates third party to the Columbia BusinessShared Contract, on substantially equivalent which new contract contains the terms and conditions as are then in effect under such Shared Contract, or (ii) applicable to the extent that such obligations relate to the Columbia Business, and enter into a new Contract with the applicable counterparty which solely relates to the NiSource Business, on substantially equivalent terms and conditions Business as are then in effect under such Shared Contract.
(d) With respect to each Shared Contract that is not partially assigned or amended as contemplated by Section 5.2(b) or Section 5.2(c), NiSource and Columbia shall, and shall cause the applicable NiSource Parties and Columbia Parties to, cooperate in any lawful and reasonable arrangement, to the extent so permitted under the terms of such Shared Contract and applicable Law:
(i) to provide the applicable NiSource Party the benefits and obligations of any such Shared Contract with respect to the NiSource Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the NiSource Party any or all of the rights and obligations with respect to such Shared Contract with respect to the NiSource Business, including, to the extent applicable and appropriate, upon the request and at the sole cost and expense of NiSource, CPG or the applicable CPG Parties using commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims under such Shared Contract with respect to the NiSource Business on the applicable NiSource Parties’ behalf where such right to pursue a breach is not passed on to NiSource. In any such arrangement, the NiSource Parties will, with respect to that portion of the Shared Contract relating to the NiSource Business, (A) bear the sole responsibility for completion of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of Columbia and the applicable Columbia Party related to such activities, (F) be entitled to continue to receive any correspondence or invoices delivered with respect to such Shared Contract and (G) be entitled to receive copies of all correspondence and invoices delivered to or by any Columbia Party with respect to such Shared Contract; and
(ii) to provide the applicable Columbia Party the benefits and obligations of any such Shared Contract with respect to the Columbia Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the Columbia Party any or all of the rights and obligations with respect to such Shared Contract with respect to the Columbia Business including, to the extent applicable and appropriate, upon the request and at the sole cost and expense of CPG, NiSource or the applicable NiSource Parties using commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims under such Shared Contract with respect to the CPG Business on the applicable CPG Parties’ behalf where such right to pursue a breach is not passed on to CPG. In any such arrangement, the Columbia Parties will, with respect to that portion of the Shared Contract relating to the Columbia Business, (A) bear the sole responsibility for completion of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of NiSource and the applicable NiSource Party related to such activities and (F) be entitled to receive copies of all correspondence and invoices delivered to or by any NiSource Party date hereof with respect to such Shared Contract.
(eb) With respect to each a Shared Contract Contract, in the event that a new contract is not entered into on or prior to the subject of an arrangement contemplated by Closing Date as set forth in Section 5.2(d5.13(a), NiSourcethe Sellers shall, on behalf of itself and each subject to Section 5.13(c), use their commercially reasonable efforts (i) to provide one of the NiSource PartiesCompanies or Subsidiaries (as applicable), at the applicable Company’s or Subsidiary’s expense, the applicable benefits under the Shared Contract; provided that, such expenses shall indemnify, defend and hold harmless each not materially exceed those that would have been incurred had a Company or Subsidiary entered into an agreement directly with the relevant third party on the terms of the Columbia Parties from relevant Shared Contract, (ii) to cooperate in a reasonable and against any and all Expenses or Losses incurred or suffered by lawful arrangement designed to provide such benefits to one or more of the Columbia Parties in connection withCompanies or Subsidiaries (as applicable) and (iii) to enforce at the request of one of the Companies or Subsidiaries and for the account of such Company or Subsidiary, relating toat the applicable Company’s or Subsidiary’s expense, any of the rights arising out of or due to, directly or indirectly, that portion from any of the Shared Contract relating Contracts that were to be assigned. To the extent such benefit is made available and/or such arrangement is created for the benefit of one of the Companies or Subsidiaries, Buyer shall procure that the applicable Company or Subsidiary shall pay, perform, and discharge fully all obligations applicable to the NiSource Business. With respect Business under any such agreement and provided that, to each the extent that any Shared Contract that is governed by English law, no such benefit shall be assigned to a Company or a Subsidiary under the subject preceding provisions of an arrangement contemplated this Section 5.13(b) unless the corresponding obligations and liabilities under such contract are validly assumed by Section 5.2(d), Columbia, on behalf it by way of itself and each of the Columbia Parties, shall indemnify, defend and hold harmless each of the NiSource Parties from and against any and all Expenses novation or Losses incurred or suffered by one or more of the NiSource Parties in connection with, relating to, arising out of or due to, directly or indirectly, that portion of the Shared Contract relating to the Columbia Businessotherwise.
(fc) No NiSource Party or Columbia Party If and to the extent that performance of the obligations set out in Sections 5.13(a) and 5.13(b) would constitute unlawful financial assistance under the Companies ▇▇▇ ▇▇▇▇ (as amended) in relation to any U.K. Entity, references in Section 5.13(a) and 5.13(b) to such U.K. Entity shall be required deemed to pay any consideration refer instead to any Third Party in connection with implementing the arrangements contemplated by this Section 5.2Buyer.
(g) The parties shall follow the procedures specified in Section 10.2 in the event of any dispute regarding the rights and obligations of the NiSource Parties or the Columbia Parties with respect to any Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d).
Appears in 1 contract
Shared Contracts. (a) Any Contract with a Third Party that relates Prior to both the NiSource Business Closing, Truist and the Columbia Business (each such ContractBuyer Entities shall cooperate in good faith to determine a mutually acceptable plan for separating the Shared Contracts, a “including to identify any Shared Contract”) Contracts that shall be handled as contemplated by Section 5.2(d) unless NiSource determines, in separated prior to Closing to the Company Entities and Truist and its sole discretion, that it is desirable to partially assign such Shared Contract as contemplated by Section 5.2(b) or to amend such Shared Contract as contemplated by Section 5.2(cAffiliates (other than the Company Entities).
(b) If Except as set forth in this Section 5.27(b) or otherwise agreed in writing between Truist and the Buyer Entities, Truist shall use reasonable best efforts and cooperate with the Buyer entities to ensure that (i) each Shared Contract shall be assigned, transferred and conveyed to a Company Entity, in each case, only with respect to (and preserving the meaning of) those parts of such Shared Contract that relate to any Company Entity, if so assignable, transferable or conveyable (including by “splitting” statements of work), (ii) a Company Entity enters into a replacement contract, purchase order or other agreement with the applicable counterparty (including by “cloning” any master services agreement), or (iii) a reasonable and lawful arrangement designed to provide the Company Entities with the rights and benefit of those parts of the Shared Contract that relate to such Company Entities, including all related assets, licenses, services, and financial commitments to the extent primarily related to the Company Entities, and shall assume the burden of any liabilities to the extent related to the Company Entities; provided that (A) in no event shall any Person be required to assign (or amend), either in its entirety or in part, any Shared Contract can if an attempted assignment or amendment, without the consent of, or other action by, any third party, would constitute a breach thereunder or in any way materially and adversely affect the rights of any Company Entity or Truist or any of their respective Affiliates thereunder, and (B) if any Shared Contract cannot be so partially assigned by its terms and NiSource determinesor otherwise, or cannot be separated or amended, without such consent or action, Truist shall (1) enforce in its sole discretiona commercially reasonable manner, that it is so desirable with respect to any rights of the Company Entities under the Shared Contracts against any other Persons, (2) not waive any rights under such Shared ContractContracts (to the extent related to the Company Entities), NiSource shall assign (3) subject to the terms and conditions of such underlying contract, not terminate (or consent to be terminated by the counterparty) such Shared Contract except in connection with (x) the expiration of such Shared Contract in part to Columbia, accordance with its terms or another Columbia Party designated by Columbia, so that the Columbia Parties will be entitled to the benefits and rights relating to the Columbia Business and will assume their related portion of any Liabilities under such Shared Contract. If any such (y) a partial assignment requires the consent or approval of any Third Party or any other required action, the partial assignment termination of such Shared Contract shall that would not impact any rights under such Shared Contract related to the Company Entities or cause any of the Company Entities to incur any liabilities, (4) not amend, modify or supplement such Shared Contract in a manner material and adverse to the Company Entities, taken as a whole, and (5) provide written notice (email being sufficient) to the applicable other Party as soon as reasonably practicable after receipt of any notice of breach received from a counterparty to any Shared Contract that would reasonably be effected expected to impact the Company Entities. Notwithstanding the foregoing, the Buyer Entities may elect for any Shared Contract not to be so assigned, transferred or conveyed to, or replicated with respect to, the Company Entities (or otherwise be the subject to this Section 5.27(b)) and to the extent Truist and its Affiliates (other than the Company Entities) have, in accordance with the terms contemplation of this AgreementAgreement and prior to the date hereof, if assigned, transferred and when conveyed to a Company Entity a Shared Contract or that part of a Shared Contract that relates to a Company Entity and such consent Shared Contract or approval portion thereof is obtained not terminable at will, the Buyer Entities shall have the right to, prior to Closing, require that Truist and its Affiliates assign, transfer and convey such Shared Contract or such portion thereof to Truist and its Affiliates (other required action has been takenthan the Company Entities).
(c) If NiSource determinesAny costs, in its sole discretion, that it is so desirable fees and expenses incurred by the parties hereto pursuant to this Section 5.27 with respect to any the Shared Contract, NiSource and Columbia shall, and shall cause the applicable NiSource Parties and Columbia Parties to, cooperate and use commercially reasonable efforts to enter into an arrangement with the counterparty to such Shared Contract to amend such Shared Contract so as to delete all obligations therefrom Contracts (i) to set forth on Section 5.27(a) of the extent that such obligations relate to the NiSource Business, and enter into a new Contract with the applicable counterparty which solely relates to the Columbia Business, on substantially equivalent terms and conditions as are then in effect under such Shared Contract, Company Disclosure Schedule or (ii) assigned, transferred and conveyed to the extent that such obligations relate Company Entities following Closing shall, in each case, be borne solely by Truist. Any costs, fees and expenses incurred by the parties hereto pursuant to this Section 5.27 with respect to the Columbia BusinessShared Contract other than those set forth on Section 5.27(a) of the Company Disclosure Schedule and that are assigned, transferred and enter into conveyed to a new Contract with Company Entity prior to Closing shall be borne 50% by the applicable counterparty which solely relates to the NiSource Business, on substantially equivalent terms Buyer Entities and conditions as are then in effect under such Shared Contract50% by Truist.
(d) With respect to each Shared Contract Without limiting the foregoing obligations, it is understood and agreed that is not partially assigned or amended as contemplated by Section 5.2(b) or Section 5.2(c), NiSource and Columbia shall, and shall cause the applicable NiSource Parties and Columbia Parties to, cooperate in any lawful and reasonable arrangement, to the extent so permitted under the terms of such Shared Contract and applicable Law:
(i) to provide the applicable NiSource Party the benefits and obligations of any such Shared Contract with respect to the NiSource Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the NiSource Party any or all of the rights and obligations with respect to such Shared Contract with respect to the NiSource Business, including, to the extent applicable and appropriate, upon the request and at the sole cost and expense of NiSource, CPG or the applicable CPG Parties using commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims under such Shared Contract with respect to the NiSource Business on the applicable NiSource Parties’ behalf where such right to pursue a breach is not passed on to NiSource. In any such arrangement, the NiSource Parties will, with respect to that portion separation of the Shared Contract relating Contracts shall not be a condition to any party’s obligation to consummate the NiSource BusinessClosing, and the failure (Ain and of itself) bear the sole responsibility to separate any Shared Contracts prior to Closing shall not be a breach of any term of this Agreement (including for completion purposes of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled conditions to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of Columbia and the applicable Columbia Party related to such activities, (F) be entitled to continue to receive any correspondence or invoices delivered with respect to such Shared Contract and (G) be entitled to receive copies of all correspondence and invoices delivered to or by any Columbia Party with respect to such Shared Contract; and
(ii) to provide the applicable Columbia Party the benefits and obligations of any such Shared Contract with respect to the Columbia Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the Columbia Party any or all of the rights and obligations with respect to such Shared Contract with respect to the Columbia Business including, to the extent applicable and appropriate, upon the request and at the sole cost and expense of CPG, NiSource or the applicable NiSource Parties using commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims under such Shared Contract with respect to the CPG Business on the applicable CPG Parties’ behalf where such right to pursue a breach is not passed on to CPG. In any such arrangement, the Columbia Parties will, with respect to that portion of the Shared Contract relating to the Columbia Business, (A) bear the sole responsibility for completion of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of NiSource and the applicable NiSource Party related to such activities and (F) be entitled to receive copies of all correspondence and invoices delivered to or by any NiSource Party with respect to such Shared Contract.
(e) With respect to each Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d), NiSource, on behalf of itself and each of the NiSource Parties, shall indemnify, defend and hold harmless each of the Columbia Parties from and against any and all Expenses or Losses incurred or suffered by one or more of the Columbia Parties in connection with, relating to, arising out of or due to, directly or indirectly, that portion of the Shared Contract relating to the NiSource Business. With respect to each Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d), Columbia, on behalf of itself and each of the Columbia Parties, shall indemnify, defend and hold harmless each of the NiSource Parties from and against any and all Expenses or Losses incurred or suffered by one or more of the NiSource Parties in connection with, relating to, arising out of or due to, directly or indirectly, that portion of the Shared Contract relating to the Columbia Business.
(f) No NiSource Party or Columbia Party shall be required to pay any consideration to any Third Party in connection with implementing the arrangements contemplated by this Section 5.2.
(g) The parties shall follow the procedures specified in Section 10.2 in the event of any dispute regarding the rights and obligations of the NiSource Parties or the Columbia Parties with respect to any Shared Contract that is the subject of an arrangement contemplated by Section 5.2(dClosing).
Appears in 1 contract
Sources: Equity Interest Purchase Agreement (Truist Financial Corp)
Shared Contracts. (a) Any From and after the date hereof until the expiration of the Agreement Term (as defined in the Transition Services Agreement), Seller shall, and shall cause its Affiliates to, cooperate with Buyer to the extent reasonably requested by Buyer to use commercially reasonable efforts to cause the counterparty to any Shared Contract with of Seller or its Affiliate that is not a Third Party that relates Transferred Contract to both the NiSource Business and the Columbia Business (each enter into a new agreement, or an amendment or assignment of 50213729.30 such Shared Contract, a “Shared Contract”) shall be handled as contemplated with Buyer or its Affiliate with respect to the matters addressed by Section 5.2(d) unless NiSource determines, in its sole discretion, that it is desirable to partially assign such Shared Contract as contemplated by Section 5.2(b) or that are related to amend the Business such that the identifiable and severable portions of such Shared Contract as contemplated by Contracts that are related to the Business may be transferred to Buyer or its Affiliates; provided, that and nothing in this Section 5.2(c)5.21 shall limit Seller’s obligation to transfer to Buyer any Business Owned IP or license to Buyer any Excluded Intellectual Property, in each case, in accordance with the terms set forth in this Agreement.
(b) If From and after the date hereof until the expiration of the Agreement Term (as defined in the Transition Services Agreement), Buyer shall, and shall cause its Affiliates to, cooperate with Seller to the extent reasonably requested by Seller to use commercially reasonable efforts to cause the counterparty to any Transferred Contract that is a Shared Contract can be partially assigned by its terms and NiSource determinesto enter into a new agreement, in its sole discretion, that it is so desirable with respect to or an amendment or assignment of such Shared Contract, NiSource shall assign with Seller or its Affiliates with respect to the matters addressed by such Shared Contract in part that are not related to Columbia, or another Columbia Party designated by Columbia, so the Business such that the Columbia Parties will be entitled to the benefits identifiable and rights relating to the Columbia Business and will assume their related portion of any Liabilities under such Shared Contract. If any such partial assignment requires the consent or approval of any Third Party or any other required action, the partial assignment severable portions of such Shared Contract shall Contracts that are not related to the Business may be effected in accordance with the terms of this Agreement, if and when such consent transferred to Seller or approval is obtained or such other required action has been takenits Affiliates.
(c) If NiSource determinesNeither Seller nor Buyer shall be required to compromise any right, asset or benefit or expend any material amount or incur any Liability or provide any other material consideration in its sole discretion, that it is so desirable with respect to any Shared Contract, NiSource and Columbia shall, and shall cause the applicable NiSource Parties and Columbia Parties to, cooperate and use commercially reasonable efforts to enter into an arrangement connection with the counterparty to such Shared Contract to amend such Shared Contract so as to delete all obligations therefrom (i) to the extent that such obligations relate to the NiSource Business, and enter into a new Contract with the applicable counterparty which solely relates to the Columbia Business, on substantially equivalent terms and conditions as are then in effect under such Shared Contract, or (ii) to the extent that such obligations relate to the Columbia Business, and enter into a new Contract with the applicable counterparty which solely relates to the NiSource Business, on substantially equivalent terms and conditions as are then in effect under such Shared Contractforegoing.
(d) With Following Closing, with respect to each commission, profit sharing and other payments (whether contingent or otherwise) payable to any Insurance Producer relating to In-Scope Policies under any Shared Contract that to which such Insurance Producer is not partially assigned a party, such payments shall be allocated and payable by Buyer or amended as contemplated its Affiliates (or reimbursed by Section 5.2(bBuyer to Seller if paid directly by Seller) based on an allocated percentage of the total commission, profit sharing and other payments (whether contingent or Section 5.2(c), NiSource and Columbia shall, and shall cause the applicable NiSource Parties and Columbia Parties to, cooperate in any lawful and reasonable arrangement, otherwise) payable to the extent so permitted Insurance Producer under the terms of such Shared Contract and applicable Law:
(i) where the allocated percentage shall equal to provide the applicable NiSource Party the benefits and obligations of any such Shared Contract premiums received with respect to the NiSource Business, including subcontracting, licensing, sublicensing, leasing or subleasing to In-Scope Policies over the NiSource Party any or total premium received for all of the rights and obligations with respect to such Shared Contract with respect to the NiSource Business, including, to the extent applicable and appropriate, upon the request and at the sole cost and expense of NiSource, CPG or the applicable CPG Parties using commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims Policies covered under such Shared Contract with respect to for the NiSource Business on the applicable NiSource Parties’ behalf where such right to pursue a breach is not passed on to NiSource. In any such arrangement, the NiSource Parties will, with respect to that portion of the Shared Contract relating to the NiSource Business, (A) bear the sole responsibility for completion of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of Columbia and the applicable Columbia Party related to such activities, (F) be entitled to continue to receive any correspondence or invoices delivered with respect to such Shared Contract and (G) be entitled to receive copies of all correspondence and invoices delivered to or by any Columbia Party with respect to such Shared Contract; and
(ii) to provide the applicable Columbia Party the benefits and obligations of any such Shared Contract with respect to the Columbia Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the Columbia Party any or all of the rights and obligations with respect to such Shared Contract with respect to the Columbia Business including, to the extent applicable and appropriate, upon the request and at the sole cost and expense of CPG, NiSource or the applicable NiSource Parties using commercially reasonable efforts and in a commercially reasonable time-frame to pursue breach of warranty claims under such Shared Contract with respect to the CPG Business on the applicable CPG Parties’ behalf where such right to pursue a breach is not passed on to CPG. In any such arrangement, the Columbia Parties will, with respect to that portion of the Shared Contract relating to the Columbia Business, (A) bear the sole responsibility for completion of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of NiSource and the applicable NiSource Party related to such activities and (F) be entitled to receive copies of all correspondence and invoices delivered to or by any NiSource Party with respect to such Shared Contractrelevant period.
(e) With respect to each Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d), NiSource, on behalf of itself and each of the NiSource Parties, shall indemnify, defend and hold harmless each of the Columbia Parties from and against any and all Expenses or Losses incurred or suffered by one or more of the Columbia Parties in connection with, relating to, arising out of or due to, directly or indirectly, that portion of the Shared Contract relating to the NiSource Business. With respect to each Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d), Columbia, on behalf of itself and each of the Columbia Parties, shall indemnify, defend and hold harmless each of the NiSource Parties from and against any and all Expenses or Losses incurred or suffered by one or more of the NiSource Parties in connection with, relating to, arising out of or due to, directly or indirectly, that portion of the Shared Contract relating to the Columbia Business.
(f) No NiSource Party or Columbia Party shall be required to pay any consideration to any Third Party in connection with implementing the arrangements contemplated by this Section 5.2.
(g) The parties shall follow the procedures specified in Section 10.2 in the event of any dispute regarding the rights and obligations of the NiSource Parties or the Columbia Parties with respect to any Shared Contract that is the subject of an arrangement contemplated by Section 5.2(d).
Appears in 1 contract
Sources: Master Transaction Agreement (Arch Capital Group Ltd.)