Common use of Shared Contracts Clause in Contracts

Shared Contracts. Buyer acknowledges the Contracts with Third Parties set forth on Schedule 6.8 to which one or more of the Companies and Seller or one or more Affiliates of Seller are parties directly benefit both Seller or an Affiliate of Seller (other than the Companies) and one or more of the Companies (the “Shared Contracts”). Seller shall use its reasonable best efforts to cause each Shared Contract that is not a Unit Operating Agreement to be replaced with a separate Contract that provides the applicable Company with rights and obligations substantially similar to the rights and obligations contained in such Shared Contract of such Company and Seller (or any Affiliate of Seller party to such Shared Contract), and Buyer shall cooperate with Seller with respect thereto; provided that, the Parties shall not be required to pay or commit to pay any amount to (or incur any obligation in favor of) any Person from whom any such consent may be required in connection with the separation or replacement of any Shared Contract. If the Parties are not able to effect the separation of a Shared Contract prior to the Closing as a result of any required approval or consent of a Third Party, then, until such actions can be effected, to the extent permissible under applicable Law and the terms of such Shared Contract, the Parties shall enter into alternative arrangements intended to provide the applicable Company with the benefits of such Shared Contract and to put the Parties in the same economic position as if such Shared Contract were separated as contemplated in this Section 6.8 prior to the Closing. Buyer acknowledges that Seller shall have no obligations under this Section 6.8 with respect to any Shared Contract that is a Unit Operating Agreement.

Shared Contracts. Buyer acknowledges (a) From the Contracts date of this Agreement until the Closing, with Third Parties set forth on Schedule 6.8 respect to which one or more each of the Companies Shared Contracts, including those listed in Section 5.7(a) of the Seller Disclosure Schedules, Seller shall, and Seller or one or more shall cause its Affiliates to, use commercially reasonable efforts to cause the counterparty to such Shared Contracts to consent to the assignment of those rights and obligations of Seller are parties directly benefit both 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 into a stand-alone new Contract between a member of the Company Group and such counterparty on substantially the same terms (to the extent relating to the Company Group or the Business) as those that exist under such Shared Contract (such assignment or entry into a new Contract, the “Contract Separation”); provided, however, that nothing in this Section 5.7(a) shall require Purchaser, Seller or an Affiliate any of their Affiliates to pay any fee or other payment or consideration (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 of the rights and obligations related to Seller or any of its Affiliates (other than the CompaniesBusiness), or otherwise incur any liability or out-of-pocket expense, in each case, in connection with the obligations or efforts set forth in this Section 5.7(a) and one or more of the Companies (together the “Shared ContractsPre-Closing Proviso”). Seller shall use its reasonable best efforts to cause each ; provided, further, that in the case of Shared Contract that is not a Unit Operating Agreement to be replaced with a separate Contract that provides Contracts which are Contracts primarily for the applicable Company with rights and obligations substantially similar provision of material Intellectual Property Rights to the rights and obligations contained in such Shared Contract of such Company and Seller (Business or any Affiliate of Company Group, Seller party to such Shared Contract), and Buyer its Affiliates shall cooperate with Seller with respect thereto; provided that, the Parties shall not be required to pay any one-time cost or commit to pay any amount to (or incur any obligation in favor of) any Person from whom any such consent may be expense reasonably required in connection with the separation or replacement Contract Separation of such Shared Contracts (except for any Shared Contractincreases in the cost of licensing any such Intellectual Property Rights as a result of such Contract Separation, which shall be borne by the relevant licensee). If the Parties are not able parties hereto receive such consent to effect the separation partial assignment of a 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. (b) For any Shared Contract for which the arrangements described in Section 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 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 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 Business), or otherwise incur any liability or expense, in each case, in connection with the 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 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 any required approval such Contract Separation or consent of a Third Party, then, until such actions can be effected, to the extent permissible under applicable Law and the terms 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, the Parties shall enter into alternative arrangements intended to provide the applicable Company with the benefits of such Shared Contract and to put the Parties in the same economic position as if such Shared Contract were separated as contemplated in this Section 6.8 prior to the Closing. Buyer acknowledges that Seller shall have no obligations under this Section 6.8 with respect to any Shared Contract that is a Unit Operating Agreement.

Shared Contracts. Buyer acknowledges the Contracts with Third Parties set Set forth on Schedule 6.8 8.16 hereto is a list of Contracts to which one or more Seller is a party and which Seller relies upon in the operation of the Companies Business and Seller or one or more Affiliates of Seller are parties directly benefit both Seller or an Affiliate of Seller its other businesses (other than the Companies) and one or more of the Companies (collectively, the “Shared Contracts”). None of the Shared Contracts will be included in the Purchased Assets because neither Company is a party to them and because Seller shall use will continue to rely upon them to operate its reasonable best efforts retained businesses. Seller is providing this list of Shared Contracts so that Buyer can assess whether and/or how to cause replace the Shared Contracts to support the operation of the Business after the Closing (a copy of each Shared Contract that is not a Unit Operating Agreement to be replaced with a separate Contract that provides the applicable Company with rights and obligations substantially similar was made available to the rights Buyer in Seller’s online data room). For a period of six months after the Closing and obligations contained at Buyer’s request, Seller shall, at Buyer’s sole cost and expense and in such Shared Contract manner as Seller may reasonably determine (but not, for example, through the offering of such Company any guarantee), cooperate with and Seller (or any Affiliate of Seller party assist Buyer and the Companies in their efforts to enter into new contractual arrangements with the other parties to such Shared Contract)Contracts. No commitments or representations are made by Seller that Buyer or the Companies will be able to enter into new contractual arrangements with such parties, and Buyer shall cooperate with Seller with respect thereto; provided that, the Parties shall not be required to pay or commit to pay any amount to (or incur any obligation in favor of) any Person from whom that any such consent may new contractual arrangements will be required in connection with on terms and conditions and at prices as favorable as the separation or replacement Shared Contracts. For a period of any Shared Contract. If the Parties are not able to effect the separation of a Shared Contract prior to the Closing as a result of any required approval or consent of a Third Party, then, until such actions can be effected, to the extent permissible under applicable Law and the terms of such Shared Contract, the Parties shall enter into alternative arrangements intended to provide the applicable Company with the benefits of such Shared Contract and to put the Parties in the same economic position as if such Shared Contract were separated as contemplated in this Section 6.8 prior to six months after the Closing. , Seller will cooperate in good faith with Buyer, at Buyer’s sole cost and expense, after Closing to assist Buyer acknowledges that Seller shall have no obligations under this Section 6.8 with respect in seeking a partial assignment for Shared Contracts including, at Buyer request, sending to each other party or parties to any Shared Contract that is Contracts a Unit Operating Agreementnotice in the form reasonably acceptable to Seller requesting such partial assignment.

Shared Contracts. Buyer acknowledges From the Contracts with Third Parties set forth on Schedule 6.8 to which one or more of date hereof until January 1, 2018, Seller, the Companies and Seller or one or more Affiliates of Seller are parties directly benefit both Seller or an Affiliate of Seller (other than the Companies) and one or more of the Companies (the “Shared Contracts”). Seller shall use its reasonable best efforts to cause each Shared Contract that is not a Unit Operating Agreement to be replaced with a separate Contract that provides the applicable Company with rights and obligations substantially similar to the rights and obligations contained in such Shared Contract of such Company and Seller (or any Affiliate of Seller party Purchaser agree to such Shared Contract), cooperate and Buyer shall cooperate with Seller with respect thereto; provided that, the Parties shall not be required to pay or commit to pay any amount to (or incur any obligation in favor of) any Person from whom any such consent may be required in connection with the separation or replacement of any Shared Contract. If the Parties are not able use their commercially reasonable efforts to effect the separation of a each Shared Contract and Joint Contract set forth on Schedule 5.16, such that the Company shall be a party to a separate agreement directly with the relevant third party(ies). To the extent any Shared Contract has not been separated prior to the Closing as a result described in the preceding sentence, then (i) the Company shall be entitled to the benefits of the portion of any required approval such Shared Contract relating to the Business accruing on or consent of a Third Party, then, until such actions can be effected, after the Closing to the extent permissible under applicable Law (and only to the extent) that Seller can provide such benefits (A) without violating the express terms of any such Shared Contract, and (B) without incurring any material expense that the Parties Company does not agree to promptly reimburse or which is not otherwise reimbursed or paid pursuant to the Transition Services Agreement or otherwise taking any material actions or measures outside of the ordinary course of business consistent with past practice (including, but not limited to, hiring additional employees), and (ii) the Company shall enter into alternative arrangements intended perform, at its sole expense, the obligations of Seller (or Seller’s applicable Affiliate) to provide be performed after the applicable Company with Closing under the benefits express terms of any such Shared Contract, solely to the extent related to portion of such Shared Contract and to put the Parties in the same economic position as if such Shared Contract were separated as contemplated in this Section 6.8 prior that relates to the ClosingBusiness. Buyer acknowledges It is understood and agreed by the NAI-1502820106v1 Parties that Seller shall have no Seller’s obligations under this Section 6.8 with respect ‎Section 5.16 do not require Seller or any of its Affiliates to offer or grant financial accommodations (other than lawful incidental payments consented to by Purchaser and for which Purchaser shall promptly reimburse Seller) to any Shared Contract that is a Unit Operating AgreementPerson or to remain secondarily liable from and after the Closing for any actions or omissions of the Company or the operation of the Business.

Shared Contracts. Buyer acknowledges the Contracts Upon Acquiror’s request, with Third Parties set forth respect to those contracts that are identified on Schedule 6.8 to which one or more 8.3 of the Companies and Company Disclosure Letter between or among Seller or one or more any of its Affiliates of Seller are parties directly benefit both Seller or an Affiliate of Seller (other than any Entity in the CompaniesCompany Group, except in the event an Entity in the Company Group is a party to a contract together with Seller or any of its other Affiliates) and one or more of any third party under which the Companies Company Group receives benefits that are material to the Business (the “Shared Contracts”). Seller , the parties shall use its commercially reasonable best efforts to cause each (a) if permissible, assign to Acquiror or its designee (including the Company Group) that portion of the benefits and obligations under such Shared Contract that is not as they relate to the Company Group or (b) cause the counterparty to each such Shared Contract to enter into a Unit Operating Agreement to be replaced new contract with a separate Contract that provides Acquiror or its designee (including the applicable Company with rights and obligations Group), on terms substantially similar to the rights and obligations those contained in such Shared Contract, in order for the Company Group to receive the applicable benefits under such Shared Contract of (each such Company new contract, a “New Contract”). If, prior to the Closing, such assignment is not permissible and Seller (or if Acquiror is not able to obtain a New Contract with respect to a counterparty to any Affiliate of Seller party to such Shared Contract), and Buyer shall cooperate with Seller with respect thereto; provided thatthen, for a period of six months after the Closing Date, the Parties parties shall not continue to use their commercially reasonable efforts to cause such counterparty to authorize such assignment or to enter into a New Contract or, if mutually agreed between the parties, Seller shall provide the benefits and obligations of such Shared Contract as they relate to the Company Group pursuant to the Transition Services Agreement for the periods specified therein. For the avoidance of doubt, in no event shall Seller or any member of the Company Group be required to pay or commit to pay any amount to (or incur any obligation in favor of) any Person from whom any such consent may be required consideration in connection with the separation or replacement of any Shared Contract. If the Parties are not able to effect the separation of a Shared Contract prior to the Closing as a result of any required approval or consent of a Third Party, then, until such actions can be effected, to the extent permissible under applicable Law and the terms of such Shared Contract, the Parties shall enter into alternative arrangements intended to provide the applicable Company with the benefits of such Shared Contract and to put the Parties in the same economic position as if such Shared Contract were separated as contemplated in this Section 6.8 prior to the Closing. Buyer acknowledges that Seller shall have no its obligations under this Section 6.8 with respect 8.3 or, unless requested to do so by Acquiror at Acquiror’s sole cost and expense, to commence, defend or participate in any litigation in connection therewith or to offer or grant any accommodation (financial or otherwise) to any Shared Contract that is a Unit Operating Agreementthird party in connection therewith.

Shared Contracts. Buyer acknowledges the Contracts with Third Parties set forth on Schedule 6.8 to which one or more of the Companies and Seller or one or more Affiliates of Seller are parties directly benefit both Seller or an Affiliate of Seller (other than the Companies) and one or more of the Companies (the “Shared Contracts”). Seller shall use its commercially reasonable best efforts prior to the Closing to cause the counterparty to each Shared Contract that is not a Unit Operating Agreement to be replaced with a separate Contract that provides consent to the partial assignment of those rights of the applicable Company with rights and obligations substantially similar to the rights and obligations contained in Seller Subsidiary under such Shared Contract of related to a Product, or to otherwise reasonably cooperate with Purchaser in Purchaser’s efforts to enter into a new contract with such Company and Seller (or any Affiliate of Seller party to counterparty on substantially the same terms as exist under such Shared Contract), and Buyer in each case as of the Closing; provided, however, that nothing in this Section 1.5 shall cooperate with require any of the Seller with respect thereto; provided that, the Parties shall not be required to pay Entities or commit any of their Affiliates to pay any amount to (fee or other payment, or incur any obligation in favor of) any Person from whom any such consent may be required liability or out of pocket expense in connection with the separation efforts set forth in this Section 1.5 (other than any fees and expenses payable to attorneys or replacement other advisors retained by a Seller Entity in connection with the foregoing). The portion related to the Products of any Shared Contract. If the Parties are not able to effect the separation of a each such Shared Contract for which the parties have received consent to such partial assignment shall thereafter be deemed to be an Assigned Contract hereunder and, if applicable, the Seller Entities shall wholly assign, or partially assign, such portion to Purchaser as of the Closing. Any Shared Contract for which the arrangements described in this Section 1.5 could not be entered into prior to the Closing as shall be a result of any required approval or consent of a Third Party, then, until such actions can be effected, Non-Assignable Asset subject to Section 1.4. The portion related to the extent permissible under applicable Law and the terms Products of such Shared Contract, the Parties shall enter into alternative arrangements intended to provide the applicable Company with the benefits of each such Shared Contract and for which the parties have not received consent to put the Parties in the same economic position as if such Shared Contract were separated as contemplated in this Section 6.8 prior partial assignment shall thereafter be deemed to the Closing. Buyer acknowledges that Seller shall have no obligations under this Section 6.8 with respect to any Shared Contract that is a Unit Operating Agreementbe an Excluded Liability.

Shared Contracts. Buyer acknowledges From the Contracts with Third Parties set forth on Schedule 6.8 to which one or more of date hereof until January 1, 2018, Seller, the Companies and Seller or one or more Affiliates of Seller are parties directly benefit both Seller or an Affiliate of Seller (other than the Companies) and one or more of the Companies (the “Shared Contracts”). Seller shall use its reasonable best efforts to cause each Shared Contract that is not a Unit Operating Agreement to be replaced with a separate Contract that provides the applicable Company with rights and obligations substantially similar to the rights and obligations contained in such Shared Contract of such Company and Seller (or any Affiliate of Seller party Purchaser agree to such Shared Contract), cooperate and Buyer shall cooperate with Seller with respect thereto; provided that, the Parties shall not be required to pay or commit to pay any amount to (or incur any obligation in favor of) any Person from whom any such consent may be required in connection with the separation or replacement of any Shared Contract. If the Parties are not able use their commercially reasonable efforts to effect the separation of a each Shared Contract and Joint Contract set forth on Schedule 5.16, such that the Company shall be a party to a separate agreement directly with the relevant third party(ies). To the extent any Shared Contract has not been separated prior to the Closing as a result described in the preceding sentence, then (i) the Company shall be entitled to the benefits of the portion of any required approval such Shared Contract relating to the Business accruing on or consent of a Third Party, then, until such actions can be effected, after the Closing to the extent permissible under applicable Law (and only to the extent) that Seller can provide such benefits (A) without violating the express terms of any such Shared Contract, and (B) without incurring any material expense that the Parties Company does not agree to promptly reimburse or which is not otherwise reimbursed or paid pursuant to the Transition Services Agreement or otherwise taking any material actions or measures outside of the ordinary course of business consistent with past practice (including, but not limited to, hiring additional employees), and (ii) the Company shall enter into alternative arrangements intended perform, at its sole expense, the obligations of Seller (or Seller’s applicable Affiliate) to provide be performed after the applicable Company with Closing under the benefits express terms of any such Shared Contract, solely to the extent related to portion of such Shared Contract and to put the Parties in the same economic position as if such Shared Contract were separated as contemplated in this Section 6.8 prior that relates to the ClosingBusiness. Buyer acknowledges It is understood and agreed by the -43- NAI-1502820106v1 Parties that Seller shall have no Seller’s obligations under this Section 6.8 with respect ‎Section 5.16 do not require Seller or any of its Affiliates to offer or grant financial accommodations (other than lawful incidental payments consented to by Purchaser and for which Purchaser shall promptly reimburse Seller) to any Shared Contract that is a Unit Operating AgreementPerson or to remain secondarily liable from and after the Closing for any actions or omissions of the Company or the operation of the Business.

Shared Contracts. The Company and the Buyer acknowledges the Contracts with Third Parties set forth on Schedule 6.8 to which one or more of the Companies and Seller or one or more Affiliates of Seller are parties directly benefit both Seller or an Affiliate of Seller (other than the Companies) and one or more of the Companies (the “Shared Contracts”). Seller shall will use its their respective reasonable best efforts efforts, including cooperating with the other Party, to cause each amend, modify or split any Shared Contract such that is not a Unit Operating Agreement to be replaced with a separate Contract that provides the applicable Company with rights and obligations substantially similar to the rights and or obligations contained in of such Shared Contract of such Company and Seller (which relate only to the Business are assigned, transferred or any Affiliate of Seller party to such Shared Contract), and Buyer shall cooperate with Seller with respect thereto; provided that, otherwise entered into on terms no less favorable as the Parties shall not be required to pay or commit to pay any amount to (or incur any obligation in favor of) any Person from whom any such consent may be required in connection with the separation or replacement of any Shared Contract. If the Parties are not able to effect the separation of a Shared Contract prior to Closing solely with respect to the Buyer or its designee(s) or otherwise terminate or eliminate any such rights and obligations of the Company or its Affiliates (other than any Divested Companies) prior to the Closing (such actions, the “Transition”), or if not completed prior to Closing, as promptly as practicable thereafter, in each case at reasonably limited cost to the Company or its Affiliates as a result Transaction Expense hereunder but which shall not be borne by the Buyer or any Divested Company; provided that if the Company and its Affiliates do not obtain or structure an arrangement to Transition any Shared Contract prior to Closing, the Company shall (i) provide to the Buyer (or its designee(s)) the benefits and the Buyer (or its designee(s)) bear the obligations and burdens, of such portion of any required approval or consent of a Third Party, then, until such actions can be effected, to the extent permissible under applicable Law and the terms of such Shared Contract, the Parties shall enter into alternative arrangements intended to provide the applicable Company with the benefits of such Shared Contract that relates to and is allocated to put the Parties Business, as reasonably determined by the Company, (ii) cooperate in any reasonable and lawful arrangement designed to provide such benefits to the same economic position as if Buyer (or its designee) and (iii) enforce at the request of the Buyer and for the account of the Buyer (or its designee) (and at the Buyer’s expense) any rights of the Company or its Affiliates arising from any such Shared Contract were separated as contemplated in this Section 6.8 prior (including the right to the Closing. Buyer acknowledges that Seller shall have no obligations under this Section 6.8 elect to terminate such Shared Contract with respect to any Shared Contract that is a Unit Operating Agreementthe Business in accordance with the terms thereof upon the request of the Buyer).