Shared Customer Contracts. (a) During the period after the date hereof until the 12-month anniversary of the Closing Date, Seller will use Commercially Reasonable Efforts to (i) cause each Shared Customer Contract to be assigned in relevant part to an Acquired Entity (in the case of a partial assignment entered into before the Closing) or a member of the Acquiror Group designated by Acquiror (in the case of a partial assignment entered into after the Closing), in each case effective from and after the Closing, or (ii) appropriately amend such Shared Customer Contract (as reasonably determined by Seller in good faith) so that Acquiror or another member of the Acquiror Group will, from and after the Closing, be entitled to the rights and benefits enjoyed by the Business under such Shared Customer Contracts on substantially the same terms as then in effect; provided that Commercially Reasonable Efforts shall include the actions set forth in Section 4.04(a) of the Seller Disclosure Letter. The Parties will reasonably cooperate to prioritize the efforts with respect to the partial assignment or amendment of Shared Customer Contracts that constitute Material Contracts. In addition, Seller will provide Acquiror with contact information for such third parties and introduce representatives of the Acquiror Group to Seller’s contacts at such third parties in respect of such Shared Customer Contracts. As soon as practicable after the date of this Agreement (and in any event within 10 Business Days from the date hereof), each of Seller and Acquiror will notify the other in writing of the contact person (or persons) responsible for communications between the Seller Group and the Acquiror Group regarding third-party consents, customer communications, responses to customer questions and concerns and any negotiations on behalf of each party with respect to the arrangements and obligations under this Section 4.04. In furtherance of the foregoing, in connection with the entry into or renewal of any Shared Customer Contract after the date hereof, Seller will use Commercially Reasonable Efforts to (i) enter into separate Contracts with such customer with respect to the Business and the applicable Excluded Business(es) and (ii) include provisions in such Transferred Customer Contract that would permit such Transferred Customer Contract to be assigned, in whole or in part, to Acquiror pursuant to this Agreement.
Appears in 1 contract
Sources: Transaction Agreement (Equinix Inc)
Shared Customer Contracts. (a) During the period after the date hereof until the 12-month anniversary of Subject to Section 5.9(d), with respect to Shared Customer Contracts, Sellers, Purchaser and their respective Subsidiaries shall use commercially reasonable efforts to obtain prior to the Closing or, if not obtained, shall use commercially reasonable efforts to obtain prior to the Anniversary Date, Seller will use Commercially Reasonable Efforts from the counterparty to (i) cause each Shared Customer Contract any consent or similar action that is required to be assigned in relevant part to an Acquired Entity (in approve the case of a partial assignment entered into before the Closing) or a member separation of the Acquiror Group designated by Acquiror (in the case portion of a partial assignment entered into after the Closing), in each case effective from and after the Closing, or (ii) appropriately amend such Shared Customer Contract (as reasonably determined by Seller in good faith) so that Acquiror or another member provides for the delivery of the Acquiror Group willTransferred Services, from it being understood that Sellers and after the Closing, Purchaser shall not be entitled required to the rights and benefits enjoyed by the Business under grant any consideration to any counterparty to such Shared Customer Contracts Contract. For the period ending on substantially the same terms as then Anniversary Date, Purchaser and Sellers shall cooperate and work in effect; provided that Commercially Reasonable Efforts shall include good faith to separate the actions set forth in Section 4.04(a) of the Seller Disclosure Letter. The Parties will reasonably cooperate to prioritize the efforts with respect to the partial assignment or amendment of Shared Customer Contracts that constitute Material Contracts. In addition, Seller will provide Acquiror with contact information for such third parties and introduce representatives of the Acquiror Group to Seller’s contacts at such third parties in respect of such Shared Customer Contracts. As soon as practicable after the date of this Agreement (and in any event within 10 Business Days from the date hereof), each of Seller and Acquiror will notify the other in writing of the contact person (or persons) responsible for communications between the Seller Group and the Acquiror Group regarding third-party consents, customer communications, responses to customer questions and concerns and any negotiations on behalf of each party with respect to the arrangements and obligations under this Section 4.04. In furtherance of the foregoing, in connection with the entry into or renewal applicable portion of any Shared Customer Contract after the date hereofhereunder in a manner mutually agreeable to Purchaser, Seller will use Commercially Reasonable Efforts to (i) enter into separate Contracts with such customer with respect to the Business Sellers and the applicable Excluded Business(es) and (ii) include provisions in such Transferred customers. For the avoidance of doubt, the Contract constituting the separated portion of any Shared Customer Contract that would permit such provides for the delivery of Transferred Services shall constitute a “Transferred Customer Contract” under this Agreement, and in no event shall those portions of any Shared Customer Contract providing for the delivery of goods and services that do not constitute Transferred Services be considered a Transferred Customer Contract. Notwithstanding anything to the contrary in this Agreement, Purchaser acknowledges and agrees that no volume, minimum purchase or similar commitments under Shared Customer Contracts or any rights relating thereto will be assigned, transferred to the Acquired Subsidiaries as part of the Transferred Customer Contracts or otherwise in whole or in part, except to Acquiror the extent solely related to the Transferred Services.
(b) Subject to Section 5.9(d), with respect to Shared Vendor Contracts, and except to the extent that the benefits and obligations of any Shared Vendor Contract are governed by the Transition Services Agreement or any other Ancillary Agreement, Sellers, Purchaser and their respective Subsidiaries shall use commercially reasonable efforts to obtain prior to the Closing or, if not obtained, shall use commercially reasonable efforts to obtain prior to the Anniversary Date, from the counterparty to each Shared Vendor Contract any consent or similar action that is required to approve the separation of the portion of such Shared Vendor Contract that provides for the delivery of products or services to the Business, it being understood that Sellers and Purchaser shall not be required to grant any consideration to any counterparty to such Shared Vendor Contract. For the period ending on the Anniversary Date, Purchaser and Sellers shall cooperate and work in good faith to separate the applicable portion of any Shared Vendor Contract hereunder in a manner mutually agreeable to Purchaser, Sellers and the applicable vendor. For the avoidance of doubt, the Contract constituting the separated portion of any Shared Vendor Contract that provides for the delivery of products or services to the Business shall constitute a “Transferred Vendor Contract” under this Agreement, and in no event shall those portions of any Shared Vendor Contract providing for the delivery of products or services to the Retained Business be considered a Transferred Vendor Contract. Notwithstanding anything to the contrary in this Agreement, Purchaser acknowledges and agrees that no volume, minimum purchase or similar commitments under Shared Vendor Contracts or any rights relating thereto will be transferred to the Acquired Subsidiaries as part of the Transferred Vendor Contracts or otherwise in whole or in part, except to the extent solely related to the delivery of products or services to the Business.
(c) If with respect to any particular contract, the efforts under Section 5.10(a) or Section 5.10(b) fail to result in the receipt of a consent or similar action before the Closing Date, then, between the Closing Date and the earlier of the date such a consent or similar action is obtained or the date such contract lapses or is terminated (either in accordance with its terms or by action of one or more parties thereto), Sellers and the Acquired Subsidiaries shall use commercially reasonable efforts to ensure that substantially comparable benefits and obligations in respect of each such Shared Customer Contract shall be conveyed to the Acquired Subsidiaries (in respect of such benefits and obligations relating to the Business) and to the Sellers (in respect of such benefits and obligations relating to the Retained Business) to put the parties in substantially similar positions as if such consent or similar action under Section 5.10(a) or Section 5.10(b) had been obtained. Without limiting the generality of the foregoing, Sellers and Purchaser agree that they can discharge their obligations under the prior sentence by, among other things, using their commercially reasonable efforts to (i) retain in place any such Shared Customer Contract, or, at Lumen’s discretion and with Purchaser’s consent (not to be unreasonably withheld), in each case in compliance with Section 5.9, transfer such Shared Customer Contract to the Acquired Subsidiaries, and to agree that the parties will provide to each other pursuant to this the Master Services Agreement or Network Services Agreement (or any other Ancillary Agreement) the products or services necessary for each party to discharge its obligations under such Shared Customer Contract or (ii) enter into any other arms-length agreements, subject in each case to the rights of the customer or vendor thereunder to consent thereto and to the parties’ obligation to allocate the respective benefits and obligations among the parties in the manner described in the prior sentence.
(d) The parties acknowledge that applicable laws or other prohibitions could prevent the Sellers from obtaining consent for the partial assignment of certain SLED Shared Customer Contracts (as defined below) to provide for the separation of the Transferred Services from one or more other products or services provided by the Retained Business. In such case, Sellers may, in their discretion, assign (in its entirety) any such SLED Shared Customer Contract to the Acquired Subsidiaries
Appears in 1 contract
Shared Customer Contracts. (a) During the period after the date hereof until the 12-month anniversary of Subject to Section 5.9(d), with respect to Shared Customer Contracts, Sellers, Purchaser and their respective Subsidiaries shall use commercially reasonable efforts to obtain prior to the Closing or, if not obtained, shall use commercially reasonable efforts to obtain prior to the Anniversary Date, Seller will use Commercially Reasonable Efforts from the counterparty to (i) cause each Shared Customer Contract any consent or similar action that is required to be assigned in relevant part to an Acquired Entity (in approve the case of a partial assignment entered into before the Closing) or a member separation of the Acquiror Group designated by Acquiror (in the case portion of a partial assignment entered into after the Closing), in each case effective from and after the Closing, or (ii) appropriately amend such Shared Customer Contract (as reasonably determined by Seller in good faith) so that Acquiror or another member provides for the delivery of the Acquiror Group willTransferred Services, from it being understood that Sellers and after the Closing, Purchaser shall not be entitled required to the rights and benefits enjoyed by the Business under grant any consideration to any counterparty to such Shared Customer Contracts Contract. For the period ending on substantially the same terms as then Anniversary Date, Purchaser and Sellers shall cooperate and work in effect; provided that Commercially Reasonable Efforts shall include good faith to separate the actions set forth in Section 4.04(a) of the Seller Disclosure Letter. The Parties will reasonably cooperate to prioritize the efforts with respect to the partial assignment or amendment of Shared Customer Contracts that constitute Material Contracts. In addition, Seller will provide Acquiror with contact information for such third parties and introduce representatives of the Acquiror Group to Seller’s contacts at such third parties in respect of such Shared Customer Contracts. As soon as practicable after the date of this Agreement (and in any event within 10 Business Days from the date hereof), each of Seller and Acquiror will notify the other in writing of the contact person (or persons) responsible for communications between the Seller Group and the Acquiror Group regarding third-party consents, customer communications, responses to customer questions and concerns and any negotiations on behalf of each party with respect to the arrangements and obligations under this Section 4.04. In furtherance of the foregoing, in connection with the entry into or renewal applicable portion of any Shared Customer Contract after the date hereofhereunder in a manner mutually agreeable to Purchaser, Seller will use Commercially Reasonable Efforts to (i) enter into separate Contracts with such customer with respect to the Business Sellers and the applicable Excluded Business(es) and (ii) include provisions in such Transferred customers. For the avoidance of doubt, the Contract constituting the separated portion of any Shared Customer Contract that would permit such provides for the delivery of Transferred Services shall constitute a “Transferred Customer Contract” under this Agreement, and in no event shall those portions of any Shared Customer Contract providing for the delivery of goods and services that do not constitute Transferred Services be considered a Transferred Customer Contract. Notwithstanding anything to the contrary in this Agreement, Purchaser acknowledges and agrees that no volume, minimum purchase or similar commitments under Shared Customer Contracts or any rights relating thereto will be assigned, transferred to the Acquired Subsidiaries as part of the Transferred Customer Contracts or otherwise in whole or in part, except to Acquiror the extent solely related to the Transferred Services.
(b) Subject to Section 5.9(d), with respect to Shared Vendor Contracts, and except to the extent that the benefits and obligations of any Shared Vendor Contract are governed by the Transition Services Agreement or any other Ancillary Agreement, Sellers, Purchaser and their respective Subsidiaries shall use commercially reasonable efforts to obtain prior to the Closing or, if not obtained, shall use commercially reasonable efforts to obtain prior to the Anniversary Date, from the counterparty to each Shared Vendor Contract any consent or similar action that is required to approve the separation of the portion of such Shared Vendor Contract that provides for the delivery of products or services to the Business, it being understood that Sellers and Purchaser shall not be required to grant any consideration to any counterparty to such Shared Vendor Contract. For the period ending on the Anniversary Date, Purchaser and Sellers shall cooperate and work in good faith to separate the applicable portion of any Shared Vendor Contract hereunder in a manner mutually agreeable to Purchaser, Sellers and the applicable vendor. For the avoidance of doubt, the Contract constituting the separated portion of any Shared Vendor Contract that provides for the delivery of products or services to the Business shall constitute a “Transferred Vendor Contract” under this Agreement, and in no event shall those portions of any Shared Vendor Contract providing for the delivery of products or services to the Retained Business be considered a Transferred Vendor Contract. Notwithstanding anything to the contrary in this Agreement, Purchaser acknowledges and agrees that no volume, minimum purchase or similar commitments under Shared Vendor Contracts or any rights relating thereto will be transferred to the Acquired Subsidiaries as part of the Transferred Vendor Contracts or otherwise in whole or in part, except to the extent solely related to the delivery of products or services to the Business.
(c) If with respect to any particular contract, the efforts under Section 5.10(a) or Section 5.10(b) fail to result in the receipt of a consent or similar action before the Closing Date, then, between the Closing Date and the earlier of the date such a consent or similar action is obtained or the date such contract lapses or is terminated (either in accordance with its terms or by action of one or more parties thereto), Sellers and the Acquired Subsidiaries shall use commercially reasonable efforts to ensure that substantially comparable benefits and obligations in respect of each such Shared Customer Contract shall be conveyed to the Acquired Subsidiaries (in respect of such benefits and obligations relating to the Business) and to the Sellers (in respect of such benefits and obligations relating to the Retained Business) to put the parties in substantially similar positions as if such consent or similar action under Section 5.10(a) or Section 5.10(b) had been obtained. Without limiting the generality of the foregoing, Sellers and Purchaser agree that they can discharge their obligations under the prior sentence by, among other things, using their commercially reasonable efforts to (i) retain in place any such Shared Customer Contract, or, at Lumen’s discretion and with Purchaser’s consent (not to be unreasonably withheld), in each case in compliance with Section 5.9, transfer such Shared Customer Contract to the Acquired Subsidiaries, and to agree that the parties will provide to each other pursuant to the Master Services Agreement or Network Services Agreement (or any other Ancillary Agreement) the products or services necessary for each party to discharge its obligations under such Shared Customer Contract or (ii) enter into any other arms-length agreements, subject in each case to the rights of the customer or vendor thereunder to consent thereto and to the parties’ obligation to allocate the respective benefits and obligations among the parties in the manner described in the prior sentence.
(d) The parties acknowledge that applicable laws or other prohibitions could prevent the Sellers from obtaining consent for the partial assignment of certain SLED Shared Customer Contracts (as defined below) to provide for the separation of the Transferred Services from one or more other products or services provided by the Retained Business. In such case, Sellers may, in their discretion, assign (in its entirety) any such SLED Shared Customer Contract to the Acquired Subsidiaries or retain (in its entirety) any such SLED Contract, in either case in accordance with the terms and conditions of Section 5.10(c). The contracting party that is in privity with the customer under any SLED Shared Customer Contract governed by this AgreementSection 5.10(d) shall be primarily responsible for the applicable customer relationship, including without limitation billing, customer support and collections of accounts receivable. For purposes hereof, “SLED Shared Customer Contracts” means contracts between Sellers or any of their Subsidiaries, on the one hand, and state and local governmental bodies (but not any federal or international governmental bodies) and educational institutions located within the Territory, on the other hand.
Appears in 1 contract
Sources: Purchase Agreement