Transition Services. (a) During the Term, OpCo hereby agrees to provide, or cause to be provided (whether through one or more of its Subsidiaries or as permitted pursuant to Section 1.2), to the Company and its Subsidiaries upon the terms and subject to the conditions set forth in this Agreement (i) as requested in writing (which may be by e-mail) by or on behalf of a Project Manager of the Company, one or more of the services described on Annex B attached hereto (the “Service Schedule”), (ii) as reasonably requested by the Company, any other service historically provided to the Company and/or its Subsidiaries during the period from April 29, 2014 through the date hereof by EFH Corporate Services, OpCo and/or their respective Subsidiaries, or (iii) if applicable, other services that may be agreed upon by the Parties (which, in the case of the Company, shall be a Project Manager of the Company or someone acting on such Project Manager’s behalf) in writing (which may be by e-mail) after the date hereof (“Additional Services” and, together with the services in clauses (i) and (ii), the “Transition Services”). In the event that the Parties identify and agree upon Additional Services to be provided under this Agreement, the Parties shall execute an amendment to this Agreement that provides for the substitution of the relevant Service Schedule, or additions or supplements to the relevant Service Schedule, in order to describe such Additional Services and other specific terms and conditions applicable thereto. (b) Notwithstanding the foregoing, during the Term, the Parties agree, subject to Article 6 hereof, that the Transition Services include, to the extent applicable, the transitioning of information of the Company and its Subsidiaries to the Company and its Subsidiaries that such Company and/or Subsidiary reasonably require to operate their businesses (including historical books and records and electronic and other data related to the business of the Company and its Subsidiaries). (c) In no event shall OpCo or its Affiliates be required to (i) lend any funds to the Company or its Affiliates or (ii) make any payments or disbursements on behalf of the Company, except to the extent the Company has previously delivered to OpCo sufficient funds to make any such payment or disbursement. (d) Unless otherwise expressly required under the terms of any relevant Service Schedule hereto, the Tax Matters Agreement, the Separation Agreement, the Split Participant Agreement, or as otherwise agreed to by the Parties in writing, in providing the Transition Services, OpCo or its Affiliates shall not be obligated to: (i) expend funds and other resources beyond levels that would be customary and reasonable for any other nationally recognized service provider to perform services that are similar to the relevant Transition Services; (ii) maintain the employment of any specific employee or subcontractor; (iii) purchase, lease or license any additional (measured as of the date hereof) equipment or materials (expressly excluding any renewal or extension of any leases or licenses required for OpCo to perform the relevant Transition Services during the Term; provided, that such extension or renewal shall be subject to Section 3.1 in all respects); or (iv) pay any of the Company’s costs related to its or any of its Affiliates’ receipt of the Transition Services. (e) The Parties acknowledge the transitional nature of the Transition Services. In this regard, the Company acknowledges and agrees that it has the responsibility for the daily and strategic management of the Company (including, without limitation, oversight and management of its continuing Chapter 11 Cases) and that the intent of this Agreement and the extent of the Transition Services to be provided hereunder are for OpCo solely to provide, during the Term, the back-office and administrative services necessary to support the on-going daily operations of the Company and its Subsidiaries in a reasonably prudent manner and the Transition Services expressly exclude any such management and oversight of the Company’s businesses. (f) Given the transitional nature of the Transition Services, the Company acknowledges and agrees that OpCo may make changes from time-to-time in the personnel performing the Transition Services. (g) Nothing in Section 1.1(d) or Section 1.1(f) shall alter the obligation of OpCo to provide the Transition Services during the Term in accordance with the other provisions of this Agreement, including with regard to type, skill, care, quantity, scope, timeliness and diligence as provided in Section 1.4.
Appears in 3 contracts
Samples: Transition Services Agreement (Vistra Energy Corp), Transition Services Agreement (Vistra Energy Corp), Transition Services Agreement (Energy Future Competitive Holdings Co LLC)
Transition Services. (a) During the Term, OpCo hereby agrees to provide, or cause to be provided (whether through one or more of its Subsidiaries or as permitted pursuant to Section 1.2), to the Company and its Subsidiaries upon the terms and subject to the conditions set forth in this Agreement (i) as requested in writing (which may be by e-mail) by or on behalf of a Project Manager of the Company, one or more of the services described on Annex B A attached hereto (the “Service Schedule”), (ii) as reasonably requested by the Company, any other service historically provided to the Company and/or its Subsidiaries during the period from April 29, 2014 through the date hereof by EFH Corporate Services, OpCo and/or their respective Subsidiaries, or (iii) if applicable, other services that may be agreed upon by the Parties (which, in the case of the Company, shall be a Project Manager of the Company or someone acting on such Project Manager’s behalf) in writing (which may be by e-mail) after the date hereof (“Additional Services” and, together with the services in clauses (i) and (ii), the “Transition Services”). In the event that the Parties identify and agree upon Additional Services to be provided under this Agreement, the Parties shall execute an amendment to this Agreement that provides for the substitution of the relevant Service Schedule, or additions or supplements to the relevant Service Schedule, in order to describe such Additional Services and other specific terms and conditions applicable thereto.
(b) Notwithstanding the foregoing, during the Term, the Parties agree, subject to Article 6 hereof, that the Transition Services include, to the extent applicable, the transitioning of information of the Company and its Subsidiaries to the Company and its Subsidiaries that such Company and/or Subsidiary reasonably require to operate their businesses (including historical books and records and electronic and other data related to the business of the Company and its Subsidiaries).
(c) In no event shall OpCo or its Affiliates be required to (i) lend any funds to the Company or its Affiliates or (ii) make any payments or disbursements on behalf of the Company, except to the extent the Company has previously delivered to OpCo sufficient funds to make any such payment or disbursement.
(d) Unless Subject to Section 1.1(f), unless otherwise expressly required under the terms of any relevant Service Schedule hereto, the Tax Matters Agreement, the Separation Agreement, the Split Participant Agreement, or as otherwise agreed to by the Parties in writing, in providing the Transition Services, OpCo or its Affiliates shall not be obligated to: (i) expend funds and other resources beyond levels that would be customary and reasonable for any other nationally recognized service provider to perform services that are similar to the relevant Transition Services; (ii) maintain the employment of any specific employee or subcontractor; (iii) purchase, lease or license any additional (measured as of the date hereof) equipment or materials (expressly excluding any renewal or extension of any leases or licenses required for OpCo to perform the relevant Transition Services during the Term; provided, that such extension or renewal shall be subject to Section 3.1 in all respects); or (iv) pay any of the Company’s costs related to its or any of its Affiliates’ receipt of the Transition Services.
(e) The Parties acknowledge the transitional nature of the Transition Services. In this regard, the Company acknowledges and agrees that it has the responsibility for the daily and strategic management of the Company (including, without limitation, oversight and management of its continuing Chapter 11 Cases) Subsidiaries and that the intent of this Agreement and the extent of the Transition Services to be provided hereunder are for OpCo solely to provide, during the Term, the back-office and administrative services necessary to support the on-going daily operations of the Company and its Subsidiaries in a reasonably prudent manner and the Transition Services expressly exclude any such management and oversight of the Company’s businesses.
(f) manner. Given the transitional nature of the Transition Services, the Company acknowledges and agrees that OpCo may make changes from time-to-time in the personnel performing the Transition Services, subject to Section 1.1(f).
(gf) Nothing in Section 1.1(d) or Section 1.1(f1.1(e) shall alter the obligation obligations of OpCo to provide the Transition Services during the Term in accordance with the other provisions of this Agreement, including with regard to type, skill, care, quantity, scope, timeliness and diligence as provided in Section 1.41.4(a).
Appears in 2 contracts
Samples: Merger Agreement (Nextera Energy Inc), Merger Agreement (Energy Future Intermediate Holding CO LLC)
Transition Services. The Parties agree that the applicable schedules to the Transition Services Agreement will include at least all services that were provided by Seller or any of its Affiliates (aother than the Entities and Company Parent) During or its or their third party service providers to the Term, OpCo hereby agrees to provideEntities or Company Parent, or cause by the Entities or Company Parent or their third party service providers to be provided (whether through one Seller or more any of its Subsidiaries or as permitted pursuant Affiliates (other than the Entities and Company Parent), in each case, during the three-month period prior to Section 1.2)the date hereof and that are reasonably required for the operation of the respective businesses of the applicable service recipients under the Transition Services Agreement after the Closing, provided, however, that, to the Company and its Subsidiaries upon extent a third party service provider is obligated at the terms and subject time of the Closing to provide the services contemplated by this Section directly to the conditions set forth in this Agreement applicable service recipients (i) whether as requested in writing (which may be by e-mail) by or on behalf a result of a Project Manager an assignment of the Company, one or more of the services described on Annex B attached hereto (the “Service Schedule”), (ii) as reasonably requested by the Company, any other service historically provided an agreement to the Company and/or its Subsidiaries during applicable service recipient or pursuant to an agreement entered into between such third party service provider and the period from April 29, 2014 through the date hereof by EFH Corporate Services, OpCo and/or their respective Subsidiaries, or (iii) if applicable, other services that may be agreed upon by the Parties (which, in the case of the Company, shall be a Project Manager of the Company or someone acting on such Project Manager’s behalf) in writing (which may be by e-mail) applicable service recipient after the date hereof (“Additional Services” andand before the Closing), together with such services will be provided pursuant to such agreement and not pursuant to the services in clauses Transition Services Agreement. From and after the date hereof and prior to the Closing Date, each of Purchaser and Seller will (i) diligently and in good faith negotiate to identify all such services and develop and agree to full service descriptions for such services, and, once agreed, such descriptions will be set forth on the schedules to the Transition Services Agreement and (ii), ) begin the “Transition Services”process of negotiating in good faith the service fees for such services in accordance with the Agreed Methodology (as such term is defined in Exhibit D). In the event that the Parties identify and agree upon Additional Services to be provided under this AgreementIf for any reason, the Parties shall execute an amendment to this Agreement that provides for the substitution of the relevant Service Schedule, or additions or supplements to the relevant Service Schedule, in order to describe such Additional Services and other specific terms and conditions applicable thereto.
(b) Notwithstanding the foregoing, during the Term, the Parties agree, subject to Article 6 hereof, that the Transition Services includeAgreement is not executed and delivered by the Closing, Seller, its Affiliates (other than the Entities and Company Parent) and Seller Successors and its and their third party service providers, to the extent applicable, the transitioning of information of the Company permitted by applicable third party contracts (and its Subsidiaries to the Company and its Subsidiaries that such Company and/or Subsidiary reasonably require to operate their businesses (including historical books and records and electronic and other data related to the business of the Company and its Subsidiaries).
(c) In no event shall OpCo or its Affiliates be required to (i) lend any funds to the Company or its Affiliates or (ii) make any payments or disbursements on behalf of the Company, except to the extent not so permitted, pursuant to Section 2.2 of Exhibit D), and the Company has previously delivered Entities and their third party service providers, to OpCo sufficient funds the extent permitted by applicable third party contracts (and to make any the extent not so permitted, pursuant to Section 2.2 of Exhibit D), will provide such payment or disbursement.
(d) Unless otherwise expressly required under services to the applicable service recipient on the terms of any relevant Service Schedule hereto, the Tax Matters Agreement, the Separation Agreement, the Split Participant Agreement, or set forth in Exhibit D until such time as otherwise agreed to by the Parties in writing, in providing the Transition Services, OpCo or its Affiliates shall not be obligated to: (i) expend funds and other resources beyond levels that would be customary and reasonable for any other nationally recognized service provider to perform services that are similar to the relevant Transition Services; (ii) maintain the employment of any specific employee or subcontractor; (iii) purchase, lease or license any additional (measured as of the date hereof) equipment or materials (expressly excluding any renewal or extension of any leases or licenses required for OpCo to perform the relevant Transition Services during the Term; provided, that such extension or renewal shall be subject to Section 3.1 in all respects); or (iv) pay any of the Company’s costs related to its or any of its Affiliates’ receipt of the Transition Services.
(e) The Parties acknowledge the transitional nature of the Transition Services. In this regard, the Company acknowledges and agrees that it has the responsibility for the daily and strategic management of the Company (including, without limitation, oversight and management of its continuing Chapter 11 Cases) and that the intent of this Agreement and the extent of the Transition Services Agreement has been executed and delivered, and Purchaser and Seller will continue to be provided hereunder are for OpCo solely use their respective commercially reasonable efforts to provide, during the Term, the back-office negotiate and administrative services necessary to support the on-going daily operations of the Company and its Subsidiaries in a reasonably prudent manner and finalize the Transition Services expressly exclude any such management Agreement until it is executed and oversight of the Company’s businessesdelivered.
(f) Given the transitional nature of the Transition Services, the Company acknowledges and agrees that OpCo may make changes from time-to-time in the personnel performing the Transition Services.
(g) Nothing in Section 1.1(d) or Section 1.1(f) shall alter the obligation of OpCo to provide the Transition Services during the Term in accordance with the other provisions of this Agreement, including with regard to type, skill, care, quantity, scope, timeliness and diligence as provided in Section 1.4.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Nii Holdings Inc)
Transition Services. (a) During To assist in ensuring the Termcontinuous and uninterrupted operation of the Business, OpCo hereby agrees to provideeach of the Sellers will, or and will cause to be provided (whether through one or more of its Subsidiaries or as permitted pursuant to Section 1.2)their respective affiliates to, to the Company and its Subsidiaries upon the terms and subject to the conditions set forth in this Agreement (i) provide Buyer with transition services as requested by Buyer for the categories of services listed on ANNEX A and any associated services and in writing (which may be by e-mail) by or on behalf of a Project Manager of the Company, one or more any event all of the services described on Annex B attached hereto ANNEX A (the “Service Schedule”)"Transition Services") until (i) the earlier of (x) such time as Buyer is reasonably able to provide such services to the Business itself or Buyer shall have contracted with third parties to provide such services to the Business, in each case without interruption to the Business or (y) the completion by Sellers of transition services for grocery deliveries made by Buyer through November 15, 2000; or (ii) as reasonably requested by such later period that is specified in ANNEX A; such period being the Company"Transition Period". Buyer shall use commercially reasonable efforts to take such appropriate action, any other service historically provided to the Company and/or its Subsidiaries during the period from April 29so that Buyer will, 2014 through the date hereof by EFH Corporate Services, OpCo and/or their respective Subsidiaries, or (iii) if applicable, other services that may be agreed upon by the Parties (which, in the case of the Company, shall be a Project Manager of the Company or someone acting on such Project Manager’s behalf) in writing (which may be by e-mail) after the date hereof (“Additional Services” and, together with the passage of time, be able to perform or have performed for itself certain accounting related services identified in clauses (i) and (ii), the “Transition Services”). In the event that the Parties identify and agree upon Additional Services to be provided under ANNEX A. Buyer shall keep Seller generally informed of its plans in this Agreement, the Parties shall execute an amendment to this Agreement that provides for the substitution of the relevant Service Schedule, or additions or supplements to the relevant Service Schedule, regard in order for Sellers to describe such Additional Services make any appropriate adjustments in Sellers' staffing and other specific terms and conditions applicable theretohiring plans.
(b) Notwithstanding the foregoingEach Seller shall, during the Termand shall cause its affiliates to, the Parties agree, subject to Article 6 hereof, that the provide such Transition Services includein good faith, in a professional and workmanlike manner and on a basis consistent with the usual standards for the provision of such Transition Services or similar services by Seller to the extent applicable, the transitioning of information of the Company and its Subsidiaries to the Company and its Subsidiaries that such Company and/or Subsidiary reasonably require to operate their businesses (including historical books and records and electronic and other data related to the business of the Company and its Subsidiaries)own customers.
(c) In no event shall OpCo All employees and representatives of any Seller or its Affiliates affiliates providing the Transition Services hereunder to Buyer and its affiliates shall be required deemed for all purposes (including compensation and employee benefits) to (i) lend any funds to the Company be employees or representatives solely of such Seller or its Affiliates affiliates and not to be employees or (ii) make representatives of Buyer or any payments of its affiliates or disbursements on behalf to be independent contractors thereof. Notwithstanding the fact that performance of the CompanyTransition Services shall be under the direction of Buyer, except in performing their respective duties hereunder, all employees and representatives of any Seller or its affiliates shall be under the direction, control and supervision of such Seller (and not of Buyer or its affiliates). Nothing herein contained shall be deemed or construed by the parties hereto or for any other party as creating the relationship of principal and agent or of partnership or joint venture by the parties hereto. None of Sellers nor any of their respective affiliates shall take title to or otherwise acquire any lien or other interest in any of Buyer's assets or properties in connection with the extent provision of the Company has previously delivered to OpCo sufficient funds to make any Transition Services, and each Seller and its affiliates shall hold all such payment or disbursementassets and properties only for the benefit of Buyer.
(d) Unless otherwise expressly required under Buyer shall have the terms sole authority to direct the manner in which the Transition Services are performed, including approving the content of any relevant Service Schedule heretocommunications to customers or suppliers of the Business. In connection with the provision of Transition Services involving communications with customers, Buyer, at its option, may script all communications of Sellers and their affiliates, and Sellers shall, and shall cause their affiliates to, follow any such script(s). Sellers shall not, and shall cause their affiliates not to, undertake any actions in connection with the Tax Matters Agreement, the Separation Agreement, the Split Participant Agreement, or as otherwise agreed to by the Parties in writing, in providing the provision of Transition Services, OpCo or its Affiliates shall not be obligated to: (i) expend funds and other resources beyond levels that would be customary and reasonable for any other nationally recognized service provider to perform services Services that are similar to the relevant Transition Services; (ii) maintain the employment of any specific employee or subcontractor; (iii) purchase, lease or license any additional (measured as of the date hereof) equipment or materials (expressly excluding any renewal or extension of any leases or licenses required for OpCo to perform the relevant Transition Services during the Term; provided, that such extension or renewal shall be subject to Section 3.1 in all respects); or (iv) pay any of the Company’s costs related to its or any of its Affiliates’ receipt of the Transition Servicesnot authorized by Buyer.
(e) The Parties acknowledge Buyer shall reimburse each Seller for its reasonable direct costs of providing the transitional nature Transition Services as reflected in an estimated budget to be mutually agreed upon by Sellers and Buyer. Sellers shall on a monthly basis submit to Buyer for payment a billing invoice or other statement setting forth the amount of any fees for the Transition Services not theretofore paid by Buyer. Each such invoice or statement shall be accompanied by such supporting detail as Buyer may reasonably request with respect to any of such fees. Payment by Buyer to Sellers in respect of any such invoice or statement shall be made within 15 days after the date of Buyer's receipt of such invoice or statement. Buyer shall have the right to conduct an audit of Sellers to determine the accuracy of the accounting for all cash receipts and disbursements from operations after the Closing Date and for any fees charged by any Seller for the Transition Services. In this regard, the Company acknowledges and agrees cost of which shall be borne by Buyer; PROVIDED, HOWEVER, that it has if the responsibility for the daily and strategic management results of the Company (including, without limitation, oversight and management of its continuing Chapter 11 Cases) and that the intent of this Agreement and the extent of the Transition Services to be provided hereunder are for OpCo solely to provide, during the Term, the back-office and administrative services necessary to support the on-going daily operations of the Company and its Subsidiaries in a reasonably prudent manner and the Transition Services expressly exclude any such management audit show mis-reporting of cash receipts and oversight disbursements and/or excess charges for fees of more than $5,000 in the Company’s businessesaggregate, then the cost of such audit shall be borne by Sellers and Sellers shall promptly reimburse Buyer for all overcharges due to mis-reporting of cash receipts or disbursements and excess charges for fees.
(f) Given Buyer will provide Sellers with the transitional nature accounting services set forth on ANNEX B (the "Accounting Services") for the operation of the Transition Business up to and including the Closing Date (the "Closing Period"). Buyer shall provide such Accounting Services in good faith, in a professional and workmanlike manner and on a basis consistent with the usual standards for the provision of such Accounting Services or similar services by Buyer. All employees and representatives of Buyer providing the Accounting Services hereunder to Sellers shall be deemed for all purposes (including compensation and employee benefits) to be employees or representatives solely of Buyer and not to be employees or representatives of any Seller or any of its affiliates or to be independent contractors thereof. In performing their respective duties hereunder, all such employees and representatives of Buyer shall be under the direction, control and supervision of Buyer (and not of any Seller or its affiliates). Sellers shall reimburse Buyer for its reasonable direct costs of providing the Accounting Services as reflected in an estimated budget to be mutually agreed upon by Sellers and Buyer. Buyer shall submit to Sellers for payment a billing invoice or other statement setting forth the amount of any fees for the Accounting Services. Such invoice or statement shall be accompanied by such supporting detail as Sellers may reasonably request with respect to any of such fees. Payment by Sellers to Buyer in respect of any such invoice or statement shall be made within 15 days after the date of Sellers' receipt of such invoice or statement. Sellers shall have the right to conduct an audit of Buyer to determine the accuracy of the accounting for all cash receipts and disbursements from operations on or prior to the Closing Date and for any fees charged by Buyer for the Accounting Services, the Company acknowledges cost of which shall be borne by Sellers; PROVIDED, HOWEVER, that if the results of any such audit show mis-reporting of cash receipts and agrees that OpCo may make changes from time-to-time disbursements and/or excess charges for fees of more than $5,000 in the personnel performing aggregate, then the Transition Servicescost of such audit shall be borne by Buyer and Buyer shall promptly reimburse Sellers for all overcharges due to mis-reporting of cash receipts or disbursements and all excess charges for fees.
(g) Nothing in Section 1.1(d) or Section 1.1(f) shall alter the obligation of OpCo to provide During the Transition Services during Period, neither Sellers or their affiliates nor Buyer or its affiliate shall disparage the Term others, whether by action, in writing or orally. Further, after the Closing, neither Sellers nor their affiliates shall communicate with any customers of the Business, other than as directed by Buyer and in accordance with this Agreement.
(h) In order to ensure that this Agreement is properly implemented, Sellers and Buyers will each appoint a person who has the other provisions responsibility of coordinating all necessary contact between the parties during the term of this Agreement, including with regard . These individuals shall work closely to type, skill, care, quantity, scope, timeliness and diligence as provided in ensure that this Section 1.48.9 is properly implemented.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Streamline Com Inc), Asset Purchase Agreement (Peapod Inc)
Transition Services. (a) During the Term, OpCo hereby agrees to provide, or cause to be provided (whether through one or more of its Subsidiaries or as permitted pursuant to Section 1.2), to the Company and its Subsidiaries upon On the terms and subject to the conditions of this Agreement, PDL shall provide the transition services to the Acquired Business as set forth in this Agreement (i) as requested in writing (which may be by e-mail) by or on behalf of a Project Manager of Exhibit A and LENSAR shall provide the Company, one or more of the transition services described on Annex B attached hereto (the “Service Schedule”), (ii) as reasonably requested by the Company, any other service historically provided to the Company and/or its Subsidiaries during the period from April 29, 2014 through the date hereof by EFH Corporate Services, OpCo and/or their respective Subsidiaries, or Retained Business as set forth in Exhibit B (iii) if applicable, other services that may be agreed upon by the Parties (which, in the case of the Company, shall be a Project Manager of the Company or someone acting on such Project Manager’s behalf) in writing (which may be by e-mail) after the date hereof (“Additional Services” and, together with the services in clauses (i) and (ii)collectively, the “Transition Services”). In the event that the Parties identify and agree upon Additional Services to be provided under this Agreement, the Parties shall execute an amendment to this Agreement that provides for the substitution of the relevant Service Schedule, or additions or supplements to the relevant Service Schedule, in order to describe such Additional Services and other specific terms and conditions applicable thereto.
(b) Notwithstanding the foregoing, during the Term, the Parties agree, subject to Article 6 hereof, that the The Transition Services includeprovided under this Agreement will be provided at a substantially similar level (type, frequency, quality, timeliness) and in a substantially similar manner as such services were performed by the Retained Business for the benefit of the Acquired Business or by the Acquired Business for the benefit of the Retained Business, in each case over the twelve (12) month period immediately prior to the extent applicable, Distribution Date (the transitioning of information of the Company and its Subsidiaries to the Company and its Subsidiaries that such Company and/or Subsidiary reasonably require to operate their businesses (including historical books and records and electronic and other data related to the business of the Company and its Subsidiaries“Reference Period”).
(c) In no event shall OpCo or Provider may perform its obligations through its Affiliates and/or Persons that are unaffiliated with any Party (each, a “Third Party”); provided that Provider shall not be required to (i) lend any funds to relieved of its obligations under this Agreement by use of such Affiliates and/or Third Parties and shall be responsible for compliance with the Company or its terms hereof by such Affiliates or (ii) make any payments or disbursements on behalf of the Company, except to the extent the Company has previously delivered to OpCo sufficient funds to make any such payment or disbursementand/or Third Parties.
(d) Unless Without limiting Provider’s obligations pursuant to Section 2.1(b) or otherwise expressly required under the terms of any relevant Service Schedule hereto, the Tax Matters this Agreement, Recipient acknowledges that Provider may be providing similar services and/or services that involve the Separation Agreement, the Split Participant Agreement, or same resources as otherwise agreed those used to by the Parties in writing, in providing provide the Transition Services, OpCo or its Affiliates shall not be obligated to: (i) expend funds and other resources beyond levels that would be customary and reasonable for any other nationally recognized service provider to perform services that are similar to the relevant Transition Services; (ii) maintain the employment of any specific employee or subcontractor; (iii) purchase, lease or license any additional (measured as of the date hereof) equipment or materials (expressly excluding any renewal or extension of any leases or licenses required for OpCo to perform the relevant Transition Services during the Term; provided, that such extension or renewal shall be subject to Section 3.1 in all respects); or (iv) pay any of the Company’s costs related to its or any of its Affiliates’ receipt of the Transition Servicesother businesses, Affiliates and/or Third Parties.
(e) The Parties acknowledge the transitional nature of the Transition Services. In this regard, the Company acknowledges and agrees that it has the responsibility for the daily and strategic management of the Company (including, without limitation, oversight and management of its continuing Chapter 11 Cases) and that the intent of this Agreement and the extent Provider may suspend any or all of the Transition Services to the extent and for the period it determines in good faith that the provision of such Transition Service(s) hereunder would violate any Law applicable to Provider. If Provider becomes aware of any such actual or potential violation, Provider shall promptly notify Recipient in writing of such violation and the Parties shall work together in good faith to seek and implement a reasonable alternative arrangement that resolves such violation, including provision of the applicable Transition Service through a Third Party. For the avoidance of doubt, Recipient shall not be provided hereunder are for OpCo solely obligated to provide, pay any Fees (as defined below) or costs in connection with any such suspended Transition Services during the Term, the back-office period such services are not provided (other than Fees and administrative services necessary to support the on-going daily operations of the Company and its Subsidiaries in a reasonably prudent manner and the reimbursable costs owed for such Transition Services expressly exclude any rendered by but not paid for prior to such management and oversight of the Company’s businessessuspension).
(f) Given the transitional nature of the Transition Services, the Company Recipient acknowledges and agrees that OpCo may make changes from time-to-time Provider is not in the personnel performing the Transition Services.
(g) Nothing in Section 1.1(d) or Section 1.1(f) shall alter the obligation business of OpCo to provide providing services and that the Transition Services during will be provided by Provider to Recipient in connection with, and in order to facilitate, the Term in accordance Spin-Off. This Agreement is not intended by the Parties to have Provider manage and operate the Recipient’s Business or to have any fiduciary duties with respect to Recipient or the other provisions of this Agreement, including with regard to type, skill, care, quantity, scope, timeliness and diligence as provided in Section 1.4Recipient’s Business.
Appears in 2 contracts
Samples: Transition Services Agreement (LENSAR, Inc.), Transition Services Agreement (LENSAR, Inc.)
Transition Services. Promptly after the date hereof, the parties shall negotiate a master transition services agreement (which may, to the extent required by Law or more convenient for administrative purposes have appended thereto separate agreements for a particular jurisdiction consistent with this Section 8.11). The principles governing such transition services agreement shall be as follows:
(a) During the Term, OpCo hereby agrees to provide, or cause to be provided Parent and it subsidiaries (whether through one or more of its Subsidiaries or as permitted pursuant to Section 1.2), to other than the Company and its Subsidiaries upon the terms and subject Subsidiaries) shall provide to the conditions set forth in this Agreement (i) as requested in writing (which may be by e-mail) by Purchaser those services listed on Schedule 8.11 hereto or on behalf of a Project Manager of the Company, one or more of the services described on Annex B attached hereto (the “Service Schedule”), (ii) as reasonably requested by the Company, any other service historically otherwise provided to the Company and/or its Subsidiaries during the period from April 29, 2014 through on or prior to the date hereof or otherwise reasonably requested by EFH Corporate Services, OpCo and/or their respective Subsidiaries, or (iii) if applicable, other services that may be agreed upon by the Parties (which, in the case of the Company, shall be a Project Manager of the Company or someone acting on such Project Manager’s behalf) in writing (which may be by e-mail) after the date hereof (“Additional Services” and, together with the services in clauses (i) and (ii), the “Transition Services”). In the event that the Parties identify and agree upon Additional Services to be provided under this Agreement, the Parties shall execute an amendment to this Agreement that provides for the substitution of the relevant Service Schedule, or additions or supplements to the relevant Service Schedule, Purchaser in order to describe such Additional Services and other specific terms and conditions applicable thereto.
(b) Notwithstanding the foregoing, during the Term, the Parties agree, subject to Article 6 hereof, that the Transition Services include, to the extent applicable, the transitioning of information of the Company and its Subsidiaries to the Company and its Subsidiaries that such Company and/or Subsidiary reasonably require to operate their businesses (including historical books and records and electronic and other data related to the business of the Company and its Subsidiaries).
(c) In no event shall OpCo or its Affiliates be required to (i) lend any funds to the Company or its Affiliates or (ii) make any payments or disbursements on behalf of the Company, except to the extent the Company has previously delivered to OpCo sufficient funds to make any such payment or disbursement.
(d) Unless otherwise expressly required under the terms of any relevant Service Schedule hereto, the Tax Matters Agreement, the Separation Agreement, the Split Participant Agreement, or as otherwise agreed to by the Parties in writing, in providing the Transition Services, OpCo or its Affiliates shall not be obligated to: (i) expend funds and other resources beyond levels that would be customary and reasonable for any other nationally recognized service provider to perform services that are similar to the relevant Transition Services; (ii) maintain the employment of any specific employee or subcontractor; (iii) purchase, lease or license any additional (measured as of the date hereof) equipment or materials (expressly excluding any renewal or extension of any leases or licenses required for OpCo to perform the relevant Transition Services during the Term; provided, that such extension or renewal shall be subject to Section 3.1 in all respects); or (iv) pay any of the Company’s costs related to its or any of its Affiliates’ receipt of the Transition Services.
(e) The Parties acknowledge the transitional nature of the Transition Services. In this regard, the Company acknowledges and agrees that it has the responsibility allow for the daily and strategic management of the Company (including, without limitation, oversight and management of its continuing Chapter 11 Cases) and that the intent of this Agreement and the extent of the Transition Services to be provided hereunder are for OpCo solely to provide, during the Term, the back-office and administrative services necessary to support the on-going daily operations operation of the Company and its Subsidiaries in a reasonably prudent manner the Ordinary Course of Business;
(b) Purchaser, the Company and the Transition Subsidiaries shall provide to Parent and its subsidiaries (other than the Company and the Subsidiaries) those services listed on Schedule 8.11 hereto or otherwise provided to the Seller and/or its subsidiaries on or prior to the date hereof or otherwise reasonably requested by Parent in order to allow for the operation of Parent and it subsidiaries (other than the Company and the Subsidiaries) in the Ordinary Course of Business;
(c) All services referred to in clause (a) and (b) are referred to as the “Services.” All Services expressly exclude to be provided by a party shall be provided at its direct unburdened costs and not in excess of per hour or per unit costs previously charged or on a pass-through basis with no mark-xx (in the case of third party providers), it being understood for certain services a flat fee per period, usage or other fee may be appropriate;
(d) Services shall be made available for a minimum of six (6) months, with the ability of a party to extend such Service for a period not to exceed twelve (12) months from Closing. The general principle will be for each party to migrate away from utilizing a particular Service as soon as reasonably practicable and commercially reasonable;
(e) The receiving party shall be permitted to terminate any such management and oversight one or more of the Company’s businesses.Services upon thirty (30) days prior notice of its intention to terminate such Services, and such termination of such Services shall not in and of itself, terminate the master transition services agreement;
(f) Given The provider of Services may terminate the transitional nature master transition services agreement with respect to any one or more of the Transition Services by written notice to the recipient in the event that (i) the recipient shall have failed to perform, in all material respects, any of its material obligations under such agreement relating to the Services, (ii) the Company acknowledges provider has notified the recipient in writing of such failure and agrees that OpCo may make changes from time-to-time in the personnel performing the Transition Services.(iii) such failure shall have continued for a period of thirty (30) days after receipt of by recipient of notice of such failure. Generally invoices shall be issued monthly and be due and payable within thirty (30) days after receipt thereof; and
(g) Nothing Any dispute arising under the master transition services agreement will be resolved by arbitration on an expedited basis and the obligations of the parties thereunder will not terminate prior to issuance of a final ruling in Section 1.1(d) or Section 1.1(f) shall alter the obligation of OpCo to provide the Transition Services during the Term in accordance with the other provisions of this Agreement, including with regard to type, skill, care, quantity, scope, timeliness and diligence as provided in Section 1.4such arbitration.
Appears in 1 contract
Transition Services. (a) During In accordance with the Termterms of this Agreement, OpCo hereby agrees to provide, Provider shall perform or cause its Affiliates to be provided (whether through one perform for Recipient or more of its Subsidiaries or as permitted pursuant to Section 1.2), to Affiliates the Company and its Subsidiaries upon the terms and subject to the conditions Transition Services set forth in this Agreement (i) the Services Schedules attached as requested in writing (which may be by e-mail) by or on behalf of a Project Manager of the Company, one or more of the services described on Annex B attached Exhibit A hereto (the “Service Services Schedule”), (ii) as reasonably requested by the Company, any other service historically provided to the Company and/or its Subsidiaries during the period from April 29, 2014 through the date hereof by EFH Corporate Services, OpCo and/or their respective Subsidiaries, or (iii) if applicable, other services that may be agreed upon by the Parties (which, in the case of the Company, shall be a Project Manager of the Company or someone acting on such Project Manager’s behalf) in writing (which may be by e-mail) after the date hereof (“Additional Services” and, together with the services in clauses (i) and (ii), the term “Transition Services”). In the event that the Parties identify and agree upon Additional Services to be provided under this Agreement, the Parties shall execute an amendment to this Agreement that provides for the substitution of the relevant Service Schedule, ” also includes any additional or additions or supplements to the relevant Service Schedule, in order to describe such Additional supplemental Services and other specific terms and conditions applicable thereto.
(b) Notwithstanding the foregoing, during the Term, the Parties agree, subject to Article 6 hereof, that the Transition Services include, to the extent applicable, the transitioning of information of the Company and its Subsidiaries to the Company and its Subsidiaries that such Company and/or Subsidiary reasonably require to operate their businesses (including historical books and records and electronic and other data related to the business of the Company and its Subsidiaries).
(c) In no event shall OpCo or its Affiliates be required to (i) lend any funds to the Company or its Affiliates or (ii) make any payments or disbursements on behalf of the Company, except to the extent the Company has previously delivered to OpCo sufficient funds to make any such payment or disbursement.
(d) Unless otherwise expressly required under the terms of any relevant Service Schedule hereto, the Tax Matters Agreement, the Separation Agreement, the Split Participant Agreement, or as otherwise Schedules mutually agreed to by the Parties in writingaccordance with this Agreement). Notwithstanding anything set forth in the Services Schedule, in providing the Services Schedule is only supplemental to, and does not amend, modify or limit the Parties’ rights or obligations under, this Agreement, provided that the Services Schedule may modify the length of the term of a Transition Service otherwise governed by Section 1.5(a), the right to extend the length of the term of a Transition Service otherwise governed by Section 1.5(b) and the price of a Transition Service otherwise governed by Section 2.1.
(b) Provider shall perform, or cause to be performed by one or more of its Affiliates, the Transition Services, OpCo or its Affiliates shall not be obligated to: Services (i) expend funds and other resources beyond levels that would be customary and reasonable for in accordance with this Agreement and, in any other nationally recognized service provider to perform services that are similar to the relevant Transition Servicesevent, in compliance with applicable Law; (ii) maintain (A) in all cases in a professional and workmanlike manner and (B) at a scope, quantity and service level (x) as specified in the employment Services Schedule, or (y) if or to the extent not specified in the Services Schedule, then at a substantially similar scope, quantity and service level with which the Transition Services have been provided by Moon and its Affiliates during the period commencing twelve (12) months prior to the date of any specific employee or subcontractorthe Merger Agreement until the Closing Date, (the “Reference Period”); and (iii) purchasein a manner that is non-discriminatory compared to the way in which Provider provides the same or similar services to itself and its Affiliates, lease including in respect of the prioritization of the provision of Transition Services relative to such same or license similar services. Provider agrees to (i) assign sufficient resources and qualified personnel as are reasonably required to perform the Transition Services and (ii) subject to Provider’s security and other access protocols and policies, provide access to existing tangible assets, equipment and infrastructure, if applicable, in good condition and working order, ordinary wear and tear excepted, in each case, as are reasonably required to perform the Transition Services. Each Transition Service shall be provided at the location or locations specified in the “Geography” column set forth opposite each Transition Service in the Services Schedule, or, if not specified in the Services Schedule, then at the location or locations at which such Transition Service has been provided by Moon and/or its Affiliates during the Reference Period. Unless otherwise agreed by the Parties in a Service Schedule, neither Provider nor any additional (measured of its Affiliates shall be required to provide any Transition Service in a location other than where such Transition Service was performed prior to the Closing. Neither Provider nor any of its Affiliates will be required to render any Transition Services in a particular location that would necessitate that Provider or any of its Affiliates qualify to do business in any location or jurisdiction other than the current locations and jurisdictions where Provider or any such Affiliate, as applicable, does business as of the date hereofEffective Date.
(c) equipment or materials (expressly excluding any renewal or extension of any leases or licenses required for OpCo to perform Recipient agrees that the relevant Transition Services during are for the Term; providedsole use and benefit of Recipient and its Affiliates, that such extension in each case, solely with respect to the SpinCo Business or renewal the Moon Business, as applicable. Neither Recipient nor any of its Affiliates shall be subject to Section 3.1 in all respects); or (iv) pay resell any of the Company’s costs related Transition Services to any Person whatsoever and shall not permit the receipt or use of the Transition Services by any Person other than for the conduct of the SpinCo Business or the Moon Business, as applicable. For the avoidance of doubt, except as set forth in a Service Schedule executed by each Party or as expressly provided herein, neither Provider nor any of its Affiliates shall be obligated to provide any other services to Recipient or any of its Affiliates’ receipt .
(d) Each Transition Service shall include all functions, responsibilities, activities and tasks, and the materials, documentation, resources, rights and licenses to be used, granted or provided by Provider that are not specifically described in this Agreement as part of such Transition Service, but have been incidental to, and were considered an inherent part of, or necessary subpart included within, such Transition Service during the Reference Period or are otherwise necessary to such Transition ServicesService.
(e) The Parties acknowledge Upon reasonable advance notice to Recipient or its Affiliate (as applicable), Provider may (or may cause its Affiliates to) modify the transitional nature manner, quality or standard of care of a Transition Service to conform to modifications in the manner, quality or standard of care that Provider or its Affiliates generally provide such Transition Service to other operations, businesses or divisions of Provider and its Affiliates or as required by a contract with a third party, so long as such modifications would not result in (x) Recipient or its Affiliates generally being treated less favorably than Provider or its Affiliates with respect to the other operations, businesses or divisions of Provider and its Affiliates receiving such Transition Service in any material respect, (y) Recipient or its Affiliates losing the benefit of such Transition Service or (z) Recipient being charged additional Costs that are not imposed on a non-discriminatory basis as compared to other operations, businesses or divisions of Provider; provided, that with respect to any Transition Service of which Recipient and its Affiliates are the users of more than 50% of the Transition ServicesService in question, any such modification shall require the consent of Recipient (such consent not to be unreasonably withheld, delayed or conditioned). In this regardNotwithstanding the foregoing, the Company acknowledges and agrees that it has the responsibility for the daily and strategic management of the Company restrictions in clauses (includingx), without limitation, oversight and management of its continuing Chapter 11 Cases(y) and that (z) above shall not apply when the intent of this Agreement and the extent of the Transition Services relevant modification is required to be provided hereunder are for OpCo solely to provide, during the Term, the back-office and administrative services necessary to support the on-going daily operations of the Company and its Subsidiaries in a reasonably prudent manner and the Transition Services expressly exclude any such management and oversight of the Company’s businessescomply with applicable Law.
(f) Given the transitional nature If, within six (6) months of the Transition ServicesClosing, SpinCo identifies any service not included in the Services Schedule (other than a service listed on Exhibit B as an Excluded Service (an “Excluded Service”)) that was provided to the SpinCo Business by Moon or any of its Affiliates at any time during the Reference Period (other than any such service provided during such period outside of the ordinary course of business in connection with the transactions contemplated by the Separation and Distribution Agreement), either directly or indirectly through third-party service providers, which service (i) Moon or its Affiliates continues to provide with respect to any operations, businesses or divisions of the Moon Group, (ii) SpinCo is not already receiving from a third-party service provider and (iii) SpinCo reasonably believes is necessary for the operation or conduct of the SpinCo Business following the Closing in substantially the same manner as the SpinCo Business was operated or conducted during the Reference Period, then promptly following a written notice from SpinCo to Moon to such effect and describing such service, the Company acknowledges Parties shall promptly provide for such service to be included hereunder such that Moon or its Affiliates will provide (or arrange for the provision of) such service to SpinCo and agrees that OpCo may make changes from time-to-time its Affiliates in accordance with the personnel performing terms of this Agreement. The compensation associated with any such service shall be determined in accordance with the Transition Servicesterms set forth in Section 2.1. The Parties shall negotiate and document the terms of such service in a supplemental Services Schedule, which Services Schedule shall describe in reasonable detail the nature, scope, service period(s) and other terms applicable to such service.
(g) Nothing If, within six (6) months of the Closing, Moon identifies any service not included in Section 1.1(dthe Services Schedule (other than an Excluded Service) that was provided to the business of Moon and its Affiliates by the SpinCo Business at any time during the Reference Period (other than any such service provided during such period outside of the ordinary course of business in connection with the transactions contemplated by the Separation and Distribution Agreement), either directly or Section 1.1(findirectly through third-party service providers, which service (i) shall alter the obligation of OpCo SpinCo or its Affiliates continues to provide with respect to any operations, businesses or divisions of the Transition Services SpinCo Group or Clover Group, (ii) Moon is not already receiving from a third-party service provider and (iii) Moon reasonably believes is necessary for the operation or conduct of the business of Moon and its Affiliates following the Closing in substantially the same manner as such business was operated or conducted during the Term Reference Period, then promptly following a written notice from Moon to SpinCo to such effect and describing such service, the Parties shall promptly provide for such service to be included hereunder such that SpinCo or its Affiliates will provide (or arrange for the provision of) such service to Moon and its Affiliates in accordance with the other provisions terms of this Agreement. The compensation associated with any such service shall be determined in accordance with the terms set forth in Section 2.1. The Parties shall negotiate and document the terms of such service in a supplemental Services Schedule, including with regard to type, skill, care, quantitywhich Services Schedule shall describe in reasonable detail the nature, scope, timeliness service period(s) and diligence as provided in other terms applicable to such service.
(h) Notwithstanding the provisions of Section 1.41.1(f) and Section 1.1(g), Recipient shall not be entitled to add any service or expand the scope or period of any service to the extent the need for such addition or expansion has resulted from the termination, transfer or reassignment by SpinCo or any of its Affiliates of the employment with the SpinCo Group of any conveyed SpinCo Employee, which SpinCo Employee was responsible for performing such service prior to such termination, transfer or reassignment.
Appears in 1 contract
Samples: Transition Services Agreement (Ingersoll Rand Inc.)
Transition Services. Subject to the terms and conditions set forth herein or in a Supplemental Agreement, (a) During beginning on the Termdate hereof and during the period set forth on the respective Annex (as such period may be extended in accordance with the respective Annex) or until earlier terminated in accordance with this Agreement (with respect to each Transition Service, OpCo hereby agrees to the “Transition Period”), Buyer and Seller each will provide, or cause to be provided (whether through one or more of its Subsidiaries respective Affiliates to provide (in each case, the party providing the services or leasing or subleasing the personal or real property (as permitted pursuant to Section 1.2lessor), the “Provider”), to the Company and other party or its Subsidiaries upon Affiliates (in each case, the terms and subject to the conditions set forth in this Agreement (i) as requested in writing (which may be by e-mail) by or on behalf of a Project Manager of the Company, one or more of party receiving the services described on Annex B attached hereto or leasing or subleasing the personal or real property (as lessee), the “Service ScheduleRecipient”), as requested, the Transition Services (ii) as reasonably requested by the Company, any other service historically provided with respect to the Company and/or its Subsidiaries during the period from April 29, 2014 through the date hereof by EFH Corporate Services, OpCo and/or their respective Subsidiaries, or (iii) if applicable, other services that may be agreed upon by the Parties (which, Business in the case of the Company, shall be a Project Manager of the Company or someone acting on such Project Manager’s behalf) in writing (which may be by e-mail) after the date hereof (“Additional Services” and, together Buyer and with the services in clauses (i) and (ii), the “Transition Services”). In the event that the Parties identify and agree upon Additional Services to be provided under this Agreement, the Parties shall execute an amendment to this Agreement that provides for the substitution of the relevant Service Schedule, or additions or supplements respect to the relevant Service Schedule, Retained Businesses in order to describe such Additional Services and other specific the case of Seller) on the terms and conditions applicable thereto.
(b) Notwithstanding the foregoing, during the Term, the Parties agree, subject to Article 6 hereof, that the Transition Services include, to the extent applicable, the transitioning of information of the Company and its Subsidiaries to the Company and its Subsidiaries that such Company and/or Subsidiary reasonably require to operate their businesses set forth herein (including historical books the Annexes hereto and records in any Supplemental Agreements), which will be of like kind and electronic amount and other data related to provided in the business manner and at a relative level of the Company and its Subsidiaries).
(c) In no event shall OpCo or its Affiliates be required to (i) lend any funds to the Company or its Affiliates or (ii) make any payments or disbursements on behalf of the Companyservice, except to the extent the Company has previously delivered to OpCo sufficient funds to make any such payment or disbursement.
(d) Unless otherwise expressly required under the terms of any relevant Service Schedule hereto, the Tax Matters Agreement, the Separation Agreement, the Split Participant Agreement, or as otherwise agreed to by the Parties in writing, in providing the Transition Services, OpCo or its Affiliates shall not be obligated to: (i) expend funds and other resources beyond levels that would be customary and reasonable for any other nationally recognized service provider to perform services that are similar to the relevant Transition Services; (ii) maintain the employment of any specific employee or subcontractor; (iii) purchase, lease or license any additional (measured as of the date hereof) equipment or materials (expressly excluding any renewal or extension of any leases or licenses required for OpCo to perform the relevant Transition Services during the Term; provided, that such extension or renewal shall be subject to Section 3.1 in all respects); or (iv) pay any of the Company’s costs related to its or any of its Affiliates’ receipt of the Transition Services.
(e) The Parties acknowledge the transitional nature of the Transition Services. In this regard, the Company acknowledges and agrees that it has the responsibility for the daily same purposes and strategic management with the same degree of the Company (care, skill and attention, including, without limitation, oversight with respect to the quality and management timeliness of such services, in all material respects, as provided by Seller or one or more of its continuing Chapter 11 Cases) Affiliates to the Business or by the Business to Seller or its Affiliates immediately prior to the date hereof and that as such services have historically been so provided; provided that, notwithstanding anything herein to the intent of this Agreement and the extent of contrary, the Transition Services to be provided hereunder are by Buyer shall be limited to those which the Business and/or the Purchased Subsidiaries historically have provided to Seller or its Affiliates, even if a service not so historically provided is described in the Annexes hereto or any Supplemental Agreement, and (b) Buyer and Seller each agree to purchase and pay for OpCo solely such Transition Services as provided herein. For the avoidance of doubt, to provide, during the Term, extent employees historically employed by Seller’s Retained Businesses performed services for the back-office and administrative services necessary to support Retained Business but become employed by the on-going daily operations Business in connection with the separation of the Company and its Subsidiaries in Business from the Retained Businesses, such persons may be called upon to perform such services previously performed for the Retained Business as a reasonably prudent manner and Transition Service by the Transition Services expressly exclude any Business to Seller upon such management and oversight persons becoming part of the CompanyBusiness, notwithstanding that such services have not historically been provided by the Business to Seller’s businesses.
(f) Given the transitional nature Retained Businesses because such employees historically were part of the Transition Services, the Company acknowledges and agrees that OpCo may make changes from time-to-time in the personnel performing the Transition ServicesRetained Businesses.
(g) Nothing in Section 1.1(d) or Section 1.1(f) shall alter the obligation of OpCo to provide the Transition Services during the Term in accordance with the other provisions of this Agreement, including with regard to type, skill, care, quantity, scope, timeliness and diligence as provided in Section 1.4.
Appears in 1 contract
Samples: Transition Services Agreement (Sensata Technologies Holland, B.V.)
Transition Services. (a) During the Term, OpCo hereby agrees to provide, or cause to be provided (whether through one or more of its Subsidiaries or as permitted pursuant to Section 1.2), to the Company and its Subsidiaries upon Upon the terms and subject to the conditions set forth in this Agreement (i) as requested in writing (which may be by e-mail) by Agreement, Interface will provide, or on behalf cause one of a Project Manager of its Affiliates to provide, to the Company, one or more Company and its Subsidiaries each of the services described set forth on Annex B Schedule A, which is attached hereto (and made a part hereof. Each of the services listed on Schedule A is hereafter referred to individually as a “Transition Service”, and collectively as the “Service ScheduleTransition Services”. If, after the execution of this Agreement, the Company determines that a service provided by or to the Business as conducted by Interface or any of its Affiliates prior to the Closing was inadvertently omitted from Schedule A, then the parties shall negotiate in good faith to attempt to agree to the terms and conditions upon which any such additional services would be added to Schedule A (including, without limitation, the charges for such additional services, which shall be reasonable). Unless the context otherwise requires, (ii) references herein to the “Company” in its capacity as reasonably requested by the recipient of the Transition Services includes references to the Company’s Subsidiaries as recipients, any other service historically and references to “Interface” in its capacity as provider of the Transition Services includes references to Interface’s Affiliates as providers, in each case to the extent applicable.
(b) Each Transition Service shall be provided to the Company and/or its Subsidiaries during the period from April 29, 2014 through commencing on the date hereof by EFH Corporate Services, OpCo and/or their respective Subsidiaries, Effective Date (as such term is defined below) and continuing for the period set forth for each such Transition Service on Schedule A or (iii) if applicable, such other services that time as may be agreed upon by the Parties (which, in the case of the Company, shall be a Project Manager of the Company or someone acting on such Project Manager’s behalf) parties in writing (which may be by e-mail) after the date hereof (“Additional Services” and, together with the services in clauses (i) and (ii), hereinafter referred to collectively as the “Time Periods” for all of the Transition Services”). In the event that the Parties identify , and agree upon Additional Services to be provided under this Agreement, the Parties shall execute individually a “Time Period” for an amendment to this Agreement that provides for the substitution of the relevant Service Schedule, or additions or supplements to the relevant Service Schedule, in order to describe such Additional Services and other specific terms and conditions applicable thereto.
(b) Notwithstanding the foregoing, during the Term, the Parties agree, subject to Article 6 hereof, that the individual Transition Services include, to the extent applicable, the transitioning of information of the Company and its Subsidiaries to the Company and its Subsidiaries that such Company and/or Subsidiary reasonably require to operate their businesses (including historical books and records and electronic and other data related to the business of the Company and its SubsidiariesService).
(c) In no event The parties shall OpCo or its Affiliates be required to (i) lend any funds to cooperate with all reasonable requests of each other in connection with the Company or its Affiliates or (ii) make any payments or disbursements on behalf of transition from the Company, except to the extent the Company has previously delivered to OpCo sufficient funds to make any such payment or disbursement.
(d) Unless otherwise expressly required under the terms of any relevant Service Schedule hereto, the Tax Matters Agreement, the Separation Agreement, the Split Participant Agreement, or as otherwise agreed to by the Parties in writing, in providing the Transition Services, OpCo or its Affiliates shall not be obligated to: (i) expend funds and other resources beyond levels that would be customary and reasonable for any other nationally recognized service provider to perform services that are similar to the relevant Transition Services; (ii) maintain the employment of any specific employee or subcontractor; (iii) purchase, lease or license any additional (measured as of the date hereof) equipment or materials (expressly excluding any renewal or extension of any leases or licenses required for OpCo to perform the relevant Transition Services during the Term; provided, that such extension or renewal shall be subject to Section 3.1 in all respects); or (iv) pay any of the Company’s costs related to its or any of its Affiliates’ receipt of the Transition Services.
(e) The Parties acknowledge the transitional nature of the Transition Services. In this regard, the Company acknowledges and agrees that it has the responsibility for the daily and strategic management of the Company (including, without limitation, oversight and management of its continuing Chapter 11 Cases) and that the intent of this Agreement and the extent provision of the Transition Services by Interface or its Affiliates to be provided hereunder are for OpCo solely to provide, during the Term, the back-office and administrative services necessary to support the on-going daily operations provision of the Company and its Subsidiaries in a reasonably prudent manner and the Transition Services expressly exclude any such management and oversight of by the Company’s businesses, its Subsidiaries or its subcontractors in a timely and cost-effective manner.
(f) Given the transitional nature of the Transition Services, the Company acknowledges and agrees that OpCo may make changes from time-to-time in the personnel performing the Transition Services.
(g) Nothing in Section 1.1(d) or Section 1.1(f) shall alter the obligation of OpCo to provide the Transition Services during the Term in accordance with the other provisions of this Agreement, including with regard to type, skill, care, quantity, scope, timeliness and diligence as provided in Section 1.4.
Appears in 1 contract
Transition Services. (a) During As promptly as practicable following the Termdate of this Agreement, OpCo hereby agrees the Parties shall establish a joint transition project team to provideplan for the efficient migration of the Business to the IT and other systems of Purchaser and its Affiliates, and shall cooperate in good faith to take the actions contemplated by such plan. Without limiting the foregoing, Seller shall, as promptly as practicable following the date of this Agreement, introduce Purchaser and its Representatives to the counterparties to the IT agreements, including software licenses used by the Business, and to the material third-party suppliers and vendors of the Business reasonably requested by Purchaser, in each case, that are not counterparties to Contracts with the Acquired Company, and, thereafter assist Purchaser and its Representatives in obtaining with effect from and after the Closing the services or cause to be licenses provided (whether through one or more of its Subsidiaries or as permitted pursuant to Section 1.2)by such counterparties, in each case, to the Company extent relating to the Business; provided, however, that any Liabilities in connection with any software licenses transferred or any third party services or products as contemplated in this Section 7.22 shall be Liabilities of Purchaser. Purchaser shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to prepare for a transition of the IT systems used in the operation of the Business to Purchaser, so that Purchaser is able to operate the IT systems at the Facility without any IT-related support from Seller and its Subsidiaries upon Affiliates as of the terms Closing in substantially the same manner and subject functionality as such IT Systems operated as of the date of this Agreement to the conditions set forth extent required to operate the Business in substantially the same manner as of the date of this Agreement (i) and as requested in writing (which may be by e-mail) by or on behalf of a Project Manager of the Company, one or more of the services described on Annex B attached hereto Closing (the “Service ScheduleIT Transition Preparations”), and Seller shall, and shall cause its Affiliates to, provide such cooperation and access to employees, information, third-party service providers and the Facility or other sites to Purchaser and its Representatives as is reasonably necessary for the IT Transition Preparations.
(iib) as reasonably requested by the Company, any other service historically provided Except with respect to the Company and/or TSA Employee (as defined in the Transition Services Agreement), Purchaser shall, and shall cause its Subsidiaries during to, use commercially reasonable efforts to prepare for a transition of the period from April 29, 2014 through the date hereof by EFH Corporate Services, OpCo and/or their respective Subsidiaries, or (iii) if applicable, other services that may be agreed upon by the Parties (which, human resource functions used in the case operation of the CompanyBusiness to Purchaser, shall be a Project Manager including the provision of pay and benefits, as of the Company or someone acting on Closing so that Purchaser is able to perform such Project Manager’s behalf) in writing human resources functions of the Business without human resource-related support from Seller and its Affiliates following the Closing (which may be by e-mail) after the date hereof (“Additional Services” and, together with the services in clauses (i) and (ii)such preparations, the “HR Transition ServicesPreparations”), and Seller shall, and shall cause its Affiliates to, provide such cooperation and access to employees, information and third-party service providers to Purchaser and its Representatives as is reasonably necessary for such preparations, and in accordance with the terms of Section 7.12(g). In the event that Purchaser is unable to complete the Parties identify HR Transition Preparations by the Closing, Seller or one of its Affiliates shall provide the requested human resources, pay and agree upon Additional benefits administration services set forth on Schedule A of the Transition Services to be provided under this AgreementAgreement (such Schedule A, the Parties shall execute an amendment “Services Schedule”) that have not been transitioned to this Agreement that provides for the substitution of the relevant Service Schedule, or additions or supplements Purchaser pursuant to the relevant Service Schedule, in order HR Transition Preparations pursuant to describe such Additional Services and other specific the terms and conditions applicable thereto.
(b) Notwithstanding the foregoing, during the Term, the Parties agree, subject to Article 6 hereof, that of the Transition Services include, Agreement for up to three (3) months (or such longer period as expressly contemplated by the extent applicable, Services Schedule with respect to a particular service) following the transitioning of information of the Company and its Subsidiaries to the Company and its Subsidiaries that such Company and/or Subsidiary reasonably require to operate their businesses (including historical books and records and electronic and other data related to the business of the Company and its Subsidiaries)Closing.
(c) In no event shall OpCo Before the Closing Date, if Purchaser identifies a service (other than a service related to IT matters) that the Seller (or its Affiliates be required to (iAffiliates) lend any funds provide to the Company Business, or its Affiliates or (ii) make any payments or disbursements on behalf of the Company, except has provided to the extent Business during the Company has previously delivered six (6) month period prior to OpCo sufficient funds to make any such payment or disbursement.
(d) Unless otherwise expressly required under the terms date of any relevant Service Schedule hereto, the Tax Matters this Agreement, and that is reasonably necessary for the Separation AgreementBusiness to continue to operate in substantially the same manner in which the Business operated during such six (6) month period, and such service was not included on the Split Participant Agreement, or as otherwise agreed to by Services Schedule (other than because the Parties in writing, in providing the Transition Services, OpCo or its Affiliates have agreed that such services shall not be obligated to: provided), then Purchaser may request that Seller, following the Closing, provide, or to cause to be provided, such requested services (i) expend funds each such additional service, an “Unidentified Service”), and other resources beyond levels that would Purchaser and Seller shall negotiate in good faith the terms and conditions of such requested Unidentified Services, which shall be customary and reasonable for any other nationally recognized service provider to perform services that are substantially similar to the relevant terms on which Seller has agreed to provide Services as reflected in the form of Transition Services; (ii) maintain Services Agreement attached hereto so long as such Unidentified Service is comparable in nature and scope as the employment of any specific employee or subcontractor; (iii) purchase, lease or license any additional (measured services identified on the Services Schedule as of the date hereof) equipment or materials (expressly excluding any renewal or extension . If the Parties agree in writing on the fees and terms of any leases or licenses required Unidentified Services, (i) the Parties shall revise the Services Schedule to include such Unidentified Services, (ii) such Unidentified Services shall be considered Services for OpCo to perform all purposes under the relevant Transition Services during the Term; Agreement, and (iii) Seller shall provide, or shall cause to be provided, that such extension or renewal shall be Unidentified Services to Purchaser, subject to Section 3.1 in all respects); or (iv) pay any of the Company’s costs related to its or any of its Affiliates’ receipt of the Transition Services.
(e) The Parties acknowledge the transitional nature of the Transition Services. In this regard, the Company acknowledges terms and agrees that it has the responsibility for the daily and strategic management of the Company (including, without limitation, oversight and management of its continuing Chapter 11 Cases) and that the intent of this Agreement and the extent conditions of the Transition Services to be provided hereunder are for OpCo solely to provide, during the Term, the back-office and administrative services necessary to support the on-going daily operations of the Company and its Subsidiaries in a reasonably prudent manner and the Transition Services expressly exclude any such management and oversight of the Company’s businessesAgreement.
(f) Given the transitional nature of the Transition Services, the Company acknowledges and agrees that OpCo may make changes from time-to-time in the personnel performing the Transition Services.
(g) Nothing in Section 1.1(d) or Section 1.1(f) shall alter the obligation of OpCo to provide the Transition Services during the Term in accordance with the other provisions of this Agreement, including with regard to type, skill, care, quantity, scope, timeliness and diligence as provided in Section 1.4.
Appears in 1 contract
Transition Services. (a) During the Termsixty (60) day period after the Closing Date, OpCo hereby agrees each Management Member shall provide to providePurchaser such advisory services with respect to matters pertaining to the Business and the Assets as shall be reasonably requested from time to time of such Management Member by Purchaser in good faith.
(b) During the one hundred twenty (120) day period after the Closing Date, or cause Xxxxxxx X. Xxxxxxxx shall (A) provide to Purchaser such advisory services with respect to matters pertaining to the Client Central Software as shall be reasonably requested from time to time by Purchaser in good faith, (B) make himself available by telephone to answer any questions that Purchaser shall have with respect to the Client Central Software.
(c) All Support Services and Software Support Services shall be provided during the Company’s normal business hours at no cost to Purchaser (whether through one or more other than reimbursement of its Subsidiaries or as permitted pursuant to Section 1.2), expenses to the Company and its Subsidiaries upon the terms and subject extent provided in accordance with this Section 5.08) for up to the conditions set forth forty (40) hours in this Agreement (i) as requested in writing (which may be any calendar week by e-mail) by or on behalf of a Project Manager of the Company, one or more of the services described on Annex B attached hereto (the “Service Schedule”), (ii) as reasonably requested by the Company, any other service historically provided to the Company and/or its Subsidiaries during the period from April 29, 2014 through the date hereof by EFH Corporate Services, OpCo and/or their respective Subsidiaries, or (iii) if applicable, other services that may be agreed upon by the Parties (which, all Management Members in the case of the Company, shall be a Project Manager of the Company or someone acting on such Project Manager’s behalf) in writing (which may be by e-mail) after the date hereof (“Additional Services” and, together with the services in clauses (i) and (ii), the “Transition Services”)aggregate. In the event that Purchaser requests that the Parties identify Management Members collectively perform Support Services and/or Software Support Services that actually and reasonably require the Management Members, in the aggregate, to devote in excess of forty (40) hours in any calendar week to the performance of such Support Services and/or Software Support Services, the Management Members may agree upon Additional to devote time in excess of forty (40) hours in a calendar week toward the performance of such requested Support Services and/or Software Support Services (such agreement not to be provided under this Agreementunreasonably withheld), the Parties in which event, Purchaser shall execute an amendment to this Agreement that provides for the substitution of the relevant Service Schedule, or additions or supplements pay to the relevant Service Schedule, in order to describe such Additional Services and other specific terms and conditions applicable thereto.
(b) Notwithstanding the foregoing, during the Term, the Parties agree, subject to Article 6 hereof, that the Transition Services include, to the extent applicable, the transitioning of information of the Company and its Subsidiaries to the Company and its Subsidiaries that such Company and/or Subsidiary reasonably require to operate their businesses (including historical books and records and electronic and other data related to the business of the Company and its Subsidiaries).
(c) In no event shall OpCo or its Affiliates be required to (i) lend any funds to the Company or its Affiliates or (ii) make any payments or disbursements Seller Representative on behalf of the Company, except Management Members a fee of $250 per hour (plus reimbursement of expenses to the extent the Company has previously delivered to OpCo sufficient funds to make provided in accordance with this Section 5.08) for each additional hour in excess of forty (40) hours in any such payment or disbursement.
(d) Unless otherwise expressly calendar week that is actually and reasonably required under the terms of any relevant Service Schedule hereto, the Tax Matters Agreement, the Separation Agreement, the Split Participant Agreement, or as otherwise agreed to by the Parties in writing, in providing the Transition Services, OpCo or its Affiliates shall not be obligated to: (i) expend funds and other resources beyond levels that would be customary and reasonable for any other nationally recognized service provider to perform services that are similar to the relevant Transition Services; (ii) maintain the employment of any specific employee or subcontractor; (iii) purchase, lease or license any additional (measured as of the date hereof) equipment or materials (expressly excluding any renewal or extension of any leases or licenses required for OpCo to perform the relevant Transition requested Support Services during the Term; provided, that such extension or renewal shall be subject to Section 3.1 in all respects); or (iv) pay any of the Company’s costs related to its or any of its Affiliates’ receipt of the Transition Services.
(e) The Parties acknowledge the transitional nature of the Transition and/or Software Support Services. In Notwithstanding anything to the contrary in this regardAgreement, no time spent on any action taken by the Company acknowledges and agrees that it has the responsibility for the daily and strategic management Management Members under any provision of the Company this Agreement (including, without limitation, oversight and management under Section 5.07), other than in response to a request by Purchaser for Support Services or Software Support Services, as applicable, under this Section 5.08, shall be counted in the calculation of its continuing Chapter 11 Caseswhether forty (40) and that the intent of this Agreement and the extent of the Transition Services to be provided hereunder are for OpCo solely to provide, during the Term, the back-office and administrative services necessary to support the on-going daily operations of the Company and its Subsidiaries hours in a reasonably prudent manner and the Transition Services expressly exclude any such management and oversight of the Company’s businessescalendar week has been provided.
(fd) Given The Management Members shall have no obligation to expend any funds in connection with the transitional nature performance of their obligations under this Section 5.08, and Purchaser shall reimburse each Management Member for his reasonable out-of-pocket expenses which are incurred in connection with the performance by such Management Member of his obligations under this Section 5.08; provided, however, that the Management Members shall be responsible for the payment of (and Purchaser shall have no obligation to reimburse any Management Member for) any and all expenses incurred by the Management Members in connection with the performance of their obligations under this Section 5.08 for or relating to (i) telephonic and/or other electronic communications and (ii) travel to or from the Real Property and/or lodging or per diem expenses in the Phoenix, Arizona area. Any reimbursement to be made by Purchaser pursuant to this Section 5.08 shall be made following submission to Purchaser by a Management Member of reasonable documentation of the Transition Services, the Company acknowledges and agrees that OpCo may make changes from timeout-toof-time pocket expenses incurred by such Management Member in the personnel performing the Transition Servicesconnection with such Management Member’s performance of his obligations under this Section 5.08.
(ge) Nothing No Management Member, nor any other Seller, makes any warranties, express or implied, with respect to any services provided pursuant to this Section 5.08. Notwithstanding anything to the contrary contained in Section 1.1(d) or Section 1.1(f) shall alter the obligation of OpCo to provide the Transition Services during the Term in accordance with the other provisions of this Agreement, including with regard in no event shall any Management Member or any other Seller be liable to type, skill, care, quantity, scope, timeliness and diligence as provided in Purchaser or to any other Person for any Losses incurred by reason of or arising out of the (i) performance by the Management Members of Support Services and/or Software Support Services under this Section 1.45.08 or (ii) the non-performance of the Management Members of their obligations under this Section 5.08 to the extent that such non-performance does not constitute willful misconduct.
Appears in 1 contract
Samples: Securities Purchase Agreement (Digital Realty Trust, Inc.)
Transition Services. (a) During the Term, OpCo hereby agrees to provide, Upon termination in whole or cause to be provided in part of this Agreement for any reason (whether through one or more of its Subsidiaries or as permitted other than termination pursuant to Section 1.211(d)(i) or (ii)), at Company’s request and expense, Servicer must provide reasonable transition services up to the Company and its Subsidiaries upon the terms and subject to the conditions set forth in this Agreement (i) as requested in writing (which may be by e-mail) by or on behalf of a Project Manager end of the Company, one last full calendar month ending on or more of the services described on Annex B attached hereto (the “Service Schedule”), (ii) as reasonably requested by the Company, any other service historically provided to the Company and/or its Subsidiaries during the period from April 29, 2014 through the date hereof by EFH Corporate Services, OpCo and/or their respective Subsidiaries, or (iii) if applicable, other services that may be agreed upon by the Parties (which, in the case of the Company, shall be a Project Manager of the Company or someone acting on such Project Manager’s behalf) in writing (which may be by e-mail) after the date hereof that is six (“Additional Services” and6) months after the effective date of such termination, together with or such longer period as the services in clauses (i) and (ii)parties may agree, to facilitate the “Transition Services”). In orderly transfer of the event that the Parties identify and agree upon Additional Services to another provider or in bringing such services in-house with Company or its affiliates such that there will be provided under this Agreement, the Parties shall execute an amendment no material interruption or adverse effect with respect to this Agreement that provides for the substitution of the relevant Service Schedule, or additions or supplements to the relevant Service Schedule, in order to describe such Additional Services and other specific terms and conditions applicable theretoServices.
(b) Notwithstanding During any transition services period requested by Company pursuant to Section 12(a), Servicer shall diligently continue to perform the foregoingServices, during and Company will diligently continue to fulfill its duties and obligations, pursuant to the Term, the Parties agree, terms of this Agreement (subject to Article 6 hereof, that the Transition Services include, payment of compensation therefor by Company pursuant to the extent applicable, the transitioning terms of information of the Company and its Subsidiaries to the Company and its Subsidiaries that this Agreement) as if this Agreement had not been terminated during such Company and/or Subsidiary reasonably require to operate their businesses (including historical books and records and electronic and other data related to the business of the Company and its Subsidiaries)time.
(c) In no event Any notice of termination delivered to Servicer by Company shall OpCo or its Affiliates be required to (i) lend any funds to the Company or its Affiliates or (ii) make any payments or disbursements on behalf of the Companyspecify, except to the extent then known and possible, the Company has previously delivered timing and method of transition to OpCo sufficient funds a successor servicer. Servicer agrees to make any cooperate in the transfer of its responsibilities and rights hereunder to a successor servicer or subservicer, including, without limitation, the transfer to such payment party for administration by it of (a) all cash amounts that shall at the time be credited to the related Receivables or disbursementthereafter be received with respect to the related Receivables and (b) all files, documents and records relating to the related Receivables in its possession, regardless of whether such files are in electronic and hard copy form.
(d) Unless otherwise expressly required under Without in any way limiting the terms of any relevant Service Schedule heretoforegoing, Servicer shall provide Company information concerning the Tax Matters Agreement, Services reasonably necessary for the Separation Agreement, the Split Participant Agreement, or as otherwise agreed to by the Parties in writing, in providing the Transition Services, OpCo or its Affiliates shall not be obligated to: (i) expend funds and other resources beyond levels that would be customary and reasonable for any other nationally recognized service provider to perform services that are similar to the relevant Transition Services; (ii) maintain the employment of any specific employee or subcontractor; (iii) purchase, lease or license any additional (measured as timely transition of the date hereof) equipment Services from Servicer to Company or materials (expressly excluding any renewal or extension the designee of any leases or licenses required for OpCo to perform the relevant Transition Services during the Term; provided, that such extension or renewal shall be subject to Section 3.1 in all respects); or (iv) pay any of the Company’s costs related to its or any of its Affiliates’ receipt of the Transition Services.
(e) The Parties acknowledge Notwithstanding the transitional nature of the Transition Services. In this regardforegoing, the Company acknowledges and agrees that it has the responsibility for the daily and strategic management of the Company (including, without limitation, oversight and management of its continuing Chapter 11 Cases) and that the intent of this Agreement and the extent of the Transition Services to Servicer shall not be provided hereunder are for OpCo solely to provide, during the Term, the back-office and administrative services necessary to support the on-going daily operations of the Company and its Subsidiaries in a reasonably prudent manner and the Transition Services expressly exclude any such management and oversight of the Company’s businesses.
(f) Given the transitional nature of the Transition Services, the Company acknowledges and agrees that OpCo may make changes from time-to-time in the personnel performing the Transition Services.
(g) Nothing in Section 1.1(d) or Section 1.1(f) shall alter the obligation of OpCo required to provide the Transition Services during the Term in accordance with the any Confidential Information of Servicer to any person other provisions of than that which it typically provides to Company pursuant to this Agreement, including and then only to the extent that such person has executed a valid and binding confidentiality agreement with regard to type, skill, care, quantity, scope, timeliness and diligence as provided in Section 1.4customary terms for agreements of such kind.
Appears in 1 contract
Transition Services. (a) During the Termterm of this Agreement as set forth in Section 8 (the “Transition Period”), OpCo hereby agrees and subject to the terms and conditions set forth herein, Seller shall provide, or cause to be provided (whether through one or more of its Subsidiaries or Affiliates to provide, on a commercially reasonable efforts basis, the services specified on Annex A hereto (each of the categories described on Annex A, a “Service” and, collectively, the “Services”) from the Closing Date and for the period after the Closing Date with respect to each such Service as permitted pursuant to Section 1.2), to the Company and its Subsidiaries upon the terms and subject to the conditions set forth in this Agreement (i) as requested Annex A, which shall be provided in writing (which may be a manner consistent in all material respects with that provided by e-mail) by Seller or on behalf of a Project Manager of the Company, one or more of its Affiliates to the services described on Annex B attached hereto Business during the six (6) month period immediately prior to the “Service Schedule”), (iiClosing Date. Buyer shall purchase and pay for such Services pursuant to this Section 1(a) as reasonably requested provided for herein. The Services provided by Seller hereunder shall only be made available for, and Buyer shall only be entitled to utilize such Services for the Company, any other service historically provided to the Company and/or its Subsidiaries during the period from April 29, 2014 through the date hereof by EFH Corporate Services, OpCo and/or their respective Subsidiaries, or (iii) if applicable, other services that may be agreed upon by the Parties (which, in the case benefit of the Company, shall be a Project Manager of the Company or someone acting on such Project Manager’s behalf) in writing (which may be by e-mail) after the date hereof (“Additional Services” and, together with the services in clauses (i) and (ii), the “Transition Services”). In the event that the Parties identify and agree upon Additional Services to be provided under this Agreement, the Parties shall execute an amendment to this Agreement that provides for the substitution of the relevant Service Schedule, or additions or supplements to the relevant Service Schedule, in order to describe such Additional Services and other specific terms and conditions applicable theretoBusiness.
(b) Notwithstanding the foregoingThe fees payable for each Service shall be as set forth on Annex A; provided, during the Term, the Parties agree, subject to Article 6 hereofhowever, that in the Transition event any fees for Services includeare not set forth on Annex A, such Services shall be provided on a Cost Recovery Basis. As used herein, “Cost Recovery Basis” means the aggregate sum (such aggregate sum as determined and calculated by the Providing Party in its reasonable discretion) of all expenses, costs, fees, penalties and assessments resulting from the provision of Services to the extent applicableReceiving Party by the Providing Party (other than such expenses, the transitioning costs, fees, penalties and assessments resulting from a breach of information of the Company and its Subsidiaries to the Company and its Subsidiaries that such Company and/or Subsidiary reasonably require to operate their businesses (including historical books and records and electronic and a) this Agreement or any other data agreement related to the business of Services or (b) applicable Legal Requirements, in each case, by the Company Providing Party), and its Subsidiaries).
(c) In no event shall OpCo or its Affiliates be required charges on a “direct cost basis” directly incurred in connection with performing the Services, including, but not limited to (i) lend variable (and excluding fixed) expenses and (ii) any funds goods and services taxes payable with respect to the Company applicable Services provided. The Parties acknowledge that some of the Services that may be provided hereunder require instructions and information from the party receiving such Services (the “Receiving Party”), which shall be provided in sufficient time for the party providing such Services (the “Providing Party”) or its Affiliates to provide or (ii) make procure such Services. The Receiving Party shall pay any payments additional costs or disbursements on behalf expenses resulting from any failure of the CompanyReceiving Party to provide such instructions or information, except provided that the Providing party shall use reasonable efforts to the extent the Company has previously delivered to OpCo sufficient funds to make mitigate any such payment or disbursementcosts.
(d) Unless otherwise expressly required under the terms of any relevant Service Schedule hereto, the Tax Matters Agreement, the Separation Agreement, the Split Participant Agreement, or as otherwise agreed to by the Parties in writing, in providing the Transition Services, OpCo or its Affiliates shall not be obligated to: (i) expend funds and other resources beyond levels that would be customary and reasonable for any other nationally recognized service provider to perform services that are similar to the relevant Transition Services; (ii) maintain the employment of any specific employee or subcontractor; (iii) purchase, lease or license any additional (measured as of the date hereof) equipment or materials (expressly excluding any renewal or extension of any leases or licenses required for OpCo to perform the relevant Transition Services during the Term; provided, that such extension or renewal shall be subject to Section 3.1 in all respects); or (iv) pay any of the Company’s costs related to its or any of its Affiliates’ receipt of the Transition Services.
(e) The Parties acknowledge the transitional nature of the Transition Services. In this regard, the Company acknowledges and agrees that it has the responsibility for the daily and strategic management of the Company (including, without limitation, oversight and management of its continuing Chapter 11 Cases) and that the intent of this Agreement and the extent of the Transition Services to be provided hereunder are for OpCo solely to provide, during the Term, the back-office and administrative services necessary to support the on-going daily operations of the Company and its Subsidiaries in a reasonably prudent manner and the Transition Services expressly exclude any such management and oversight of the Company’s businesses.
(f) Given the transitional nature of the Transition Services, the Company acknowledges and agrees that OpCo may make changes from time-to-time in the personnel performing the Transition Services.
(g) Nothing in Section 1.1(d) or Section 1.1(f) shall alter the obligation of OpCo to provide the Transition Services during the Term in accordance with the other provisions of this Agreement, including with regard to type, skill, care, quantity, scope, timeliness and diligence as provided in Section 1.4.
Appears in 1 contract
Samples: Asset Purchase Agreement
