Indemnification by the Sellers. (a) From and after the Closing Date, subject to the provisions of this Article 10, the Securityholders jointly and severally, except as provided in Section 10.2(b), shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) from and against any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting from: (i) Any breach of any representation or warranty made by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b); (ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b); (iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing; (iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing; (A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and (vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and (vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust; (b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing. (c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries). (d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 2 contracts
Samples: Merger Agreement (Calavo Growers Inc), Merger Agreement (Calavo Growers Inc)
Indemnification by the Sellers. (a) From and after the Closing Date, subject Subject to the provisions of this Article 10XI, from and after the Closing, the Securityholders Sellers shall jointly and severally, except as provided in Section 10.2(b), shall severally indemnify, defend and hold harmless Calavo Buyer, its Affiliates (including Surviving RFG the Company Group but, for the avoidance of doubt, excluding the Company Joint Ventures) and its and their Subsidiaries) and each of their respective officers, directors, shareholders, membersequity holders, employees, agents, attorneys and other Representatives, Affiliates, representatives and their respective successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacitieseach, a “Buyer Indemnified Person”) from and against any and all losses, damages, obligations, liabilities and other costs and expenses, includingLosses incurred or suffered by any Buyer Indemnified Person to the extent arising out of any of the following, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting fromduplication:
(ia) Any any breach or inaccuracy of any representation or warranty made by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iib) Any any breach of, or failure by the Sellers to perform, any agreement of any RFG Family Entity their respective covenants, agreements or any Seller that is contained obligations set forth in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(c) (i) any Liability for Taxes of the Company Group or Taxes of any Company Joint Venture for which the Company Group is responsible, in each case, for any Pre-Closing Tax Period and any Pre-Closing Straddle Period (excluding, for the avoidance of doubt, any Pre-Closing Taxes to the extent such Taxes were reserved for or reflected in the Financial Statements or the Carve-Out Financial Statements), (ii) any Transaction Taxes for which Sellers are liable pursuant to Section 6.01(a), (iii) With any Liability for withholding Taxes under Section 2.06 attributable solely to a determination that the Sellers have provided inaccurate information with respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the ClosingRelevant Taxing Jurisdiction under Section 2.06, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
and (iv) Any litigation, arbitration, investigation if not otherwise included in clause (ii) or other claim or legal proceeding (including, without limitationiii) of this Section 11.02(c), any claims and legal proceedings that are listed Liability for Taxes imposed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any member of the RFG Family Entities prior to the Closing;
(A) All Taxes Company Group as a result of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any such member having been a part of an affiliated, consolidated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date to the extent such Tax Liability is not a Tax Liability for which the Company Group is considered the taxpayer (contribuinte) by the relevant Tax Authority and/or Tax law (in which case the Liability shall be subject to Section 11.02(c)(i));
(d) (i) any defined benefit pension obligation or Liabilities of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA member of the Company Group with respect to current or former employees of the Company Group covered under the Petros Pension Plan (in each case solely to the extent such obligations or Liabilities arise out of LIG Partnersthe Petros Pension Plan), LLC owed including, for the avoidance of doubt, any deficits or Liabilities of the Petros Pension Plan, (ii) the Sponsorship Removal and (iii) any Petros Pension Plan Litigation, in each case, regardless of when incurred; provided, that nothing in this Agreement shall require the Sellers to Umpqua Bank and EDF Resource Capitalindemnify, Inc.; anddefend or hold harmless any Buyer Indemnified Person for any Losses to the extent arising out of
(viiA) Any litigationany failure by Buyer or any of its Affiliates (including, arbitration, investigation or other claim or legal proceeding, whether brought before or after following the Closing, that is based upon the Company Group) to make any contribution to the Petros Pension Plan which becomes due and payable by such Person following the Closing with respect to services provided by Business Employees or arises out (B) any other action taken (or failed to be taken) by Buyer or any of its Affiliates (including the Company Group) following the Closing in connection with the administration of the Roll Up Transaction or any actions or omissions made or taken Petros Pension Plan, in the case of (A) and (B), with respect to Business Employees of the Company Group who are employed by the TrustCompany Group as of the Closing and who participate in the Petros Pension Plan except to the extent such action (or inaction) was a result of a failure by the Sellers to comply with Section 7.04 or the exercise by the Sellers of any other rights given by Buyer to the Sellers to act as attorneys-in-fact;
(be) From any Liabilities to the extent arising out of (w) the Business Restructuring (including any Tax Liabilities arising from the Business Restructuring), (x) the operations of the Company Group between May 28, 2010 and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against than any and all Losses that such Parties may incur based upon, Liabilities arising out of, relating to or incurred in connection with the Business), (y) the Cubatão Business (including with respect to the Cubatão Employees) and any Cubatão Litigation (but only to the extent such Liabilities arise out of the Cubatão Business), regardless of when incurred, and any Liabilities arising out of or resulting from the Cubatão Restructuring, including any Tax Liability arising from the Cubatão Restructuring or (z) if the PRCVEA Call Option is not timely exercised in accordance with Section 5.18(a), the operations conducted by PRCVEA and their respective Subsidiaries;
(f) any Liabilities of the Company Group resulting from (ai) the employment and the termination of the employment of any Person listed on Section 11.02(f)(i) of the Sellers Disclosure Schedules with the Company Group and (ii) the employment and transfer of any Transferred Employee to the Sellers or any of their respective Affiliates (other than the Company Group) pursuant to Section 7.05(a);
(g) any breach by the Seller failure to obtain any of the representations and warranties Permits, or complete any of the actions, set forth in Article 4, on Section 11.02(g) of the Buyer Disclosure Schedules;
(bh) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 failure to obtain the Environmental Operational License (or any similar provision of state, local or foreign lawLicença Ambiental de Operação) necessary and required to operate the Expanded Tapira Dam; and
(i) the Company’s indemnification obligations to Petróleo Brasilero S.A. pursuant to the Share Purchase and Sale Agreement (Contrato de Compra e Venda de Ações e Outras Avenças), as a transferee or successordated December 18, 2012, by contractand among the Company, or otherwise Petróleo Brasilero S.A., Araucária Nitrogenados S.A. and, as intervening parties, Parent and Vale Potássio do Nordeste S.A. (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiariesamended).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Mosaic Co)
Indemnification by the Sellers. (ai) From and after the Closing Date, subject to the provisions of this Article 10, the Securityholders jointly and severally, except as provided in Section 10.2(b), Each Seller shall indemnify, protect, defend and hold harmless Calavo (including Surviving RFG and save Buyer, LPT and their Subsidiaries) Affiliates and each of their officersrespective equityholders, managers, directors, shareholdersofficers, membersemployees and agents (collectively, employees, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities“Buyer Parties”) harmless from and against the entirety of any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending Losses any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties Buyer Parties may incur based uponsuffer, sustain or become subject to, through and after the date of the claim for indemnification resulting from, arising from or out of, relating to to, in the nature of, or resulting from:
(i) Any caused by any breach or inaccuracy of any representation or warranty made by the Sellers of such Seller in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to Section 3.1 of this Agreement), subject or any nonfulfillment or breach of any covenant or agreement to Section 10.2(b);be performed by such Seller.
(ii) Any breach The Sellers shall indemnify, protect, defend and hold and save the Buyer Parties harmless, from and against the entirety of any Losses any of the Buyer Parties may suffer, sustain or become subject to, through and after the date of the claim for indemnification, including without limitation any Losses any of the Buyer Parties may suffer after the end of the Survival Period (if applicable) if a claim is made before the end of the Survival Period, resulting from, arising from or out of, relating to, in the nature of, or failure to perform, caused by: (A) any agreement breach or inaccuracy of any RFG Family Entity representation or warranty relating to LPT in Section 3.2 of this Agreement or in the Disclosure Schedule relating thereto delivered by them in connection herewith; (B) any Indebtedness of LPT or any Seller Transaction Expenses that is contained are not included in this Agreement the calculations of Estimated Indebtedness or Estimated Transaction Expenses; (including C) any exhibit, schedule or other agreement or document delivered Liability for Taxes pursuant to Section 5.3(a) of this Agreement); or (D) any of the matters set forth on Schedule 6.1(b) attached hereto. In addition, subject to Section 10.2(b);
(iii) With respect to the agreements to Sellers shall promptly upon demand by the Buyer reimburse the Buyer the amount by which Surviving RFG or its Subsidiaries is a party or is otherwise bound the Estimated Cash exceeded actual Cash as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigationif any, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions which demand shall be made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to in accordance with the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.6.1..
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Faro Technologies Inc)
Indemnification by the Sellers. (a) From and after the Closing Date, subject Subject to the provisions of this Article 10limitations set forth herein, the Securityholders Sellers shall jointly and severallyseverally indemnify and defend the Buyer and its Affiliates, except as provided in Section 10.2(b), shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their respective stockholders, members, managers, officers, directors, shareholders, members, employees, other Representatives, Affiliatesagents, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities“Buyer Indemnitees”) from against, and against shall hold them harmless from, any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based uponLosses resulting from, arising out of, relating or incurred by any Buyer Indemnitee in connection with, or otherwise with respect to or resulting from:
(i) Any any inaccuracy or breach of any representation or warranty made by the Sellers in this Agreement (including any exhibitAgreement, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior Transaction Documents or any certificate or other document furnished or to be furnished to the Closing;
Buyer in connection with the Transaction (iv) Any litigationwithout regard and without giving effect to any “materiality”, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous “material adverse effect” or similar state, local qualification contained in any such representation or foreign Lawwarranty); and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (aii) any breach by the Seller Sellers of any covenant or agreement contained in this Agreement or any of the Transaction Documents (without regard and without giving effect to any “materiality”, “material adverse effect” or similar qualification contained in any such covenant or agreement); (iii) any Excluded Liability; and (iv) any Excluded Asset.
(b) The Sellers shall not be liable for any Losses pursuant to Section 6.2(a)(i): (i) with respect to any Losses unless and until the amount of Losses arising from any matter or series of matters relating to the same underlying fact, circumstances, action or event exceeds $25,000; provided, however, the limitation set forth in this Section 6.2(b)(i) shall not apply to Losses resulting from, arising out of or incurred in connection with or otherwise with respect to any inaccuracy or breach of the representations and warranties made by the Sellers in Section 2.25, and (ii) unless and until the aggregate amount of all such Losses incurred by the Buyer Indemnitees under Section 6.2(a)(i) exceeds $1,500,000, after which the Sellers shall be liable only for Losses in excess of $1,500,000 (subject to the other limitations herein); provided, however, the limitation set forth in this Section 6.2(b)(ii) shall not apply to Losses resulting from, arising out of or incurred in connection with or otherwise with respect to any inaccuracy or breach of the representations and warranties made by the Sellers in Section 2.25. The cumulative indemnification obligation of the Sellers under Section 6.2(a)(i) shall in no event exceed $22,350,000. The limitations in this Section 6.2(b) shall not apply to Losses related to any Fundamental Representation. The limitations in this Section 6.2(b) shall not apply in the case of willful breach or fraud and shall not limit the indemnification otherwise available under other provisions of Section 6.2.
(c) Notwithstanding this Section 6.2(c) or any other provision of this Agreement to the contrary, the Sellers shall not have any indemnification obligations to the Buyer Indemnitees for (i) any punitive damages, except to the extent such damages are included in any action by a third party against a Buyer Indemnitee for which such Buyer Indemnitee is entitled to indemnification hereunder or (ii) for incidental, consequential, special or indirect damages, or any claims for Losses based on diminution of value, lost revenues or profits, down time, reduction in value or loss of anticipated savings, however caused or on any theory, except for (x) any Loss incurred by the Buyer as a result of a breach by the Sellers of the representations and warranties set forth in Article 4Section 2.5, in which case the Sellers shall be required to indemnify the Buyer for any such Loss incurred by the Buyer, including incidental, consequential, special or indirect damages that are reasonably foreseeable as a result of the breach of Section 2.5; and (by) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (with respect to incidental, consequential, special or indirect damages, or any similar provision claims for Losses based on diminution of statevalue, local lost revenues or foreign lawprofits, down time, reduction in value or loss of anticipated savings, however caused or on any theory other than those described in the immediately preceding clause (x), as up to a transferee or successor, by contract, or otherwise and (c) any breach by the Seller maximum aggregate amount of any covenants applicable to such Seller after the Closing$500,000.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (SpartanNash Co)
Indemnification by the Sellers. (a) From and after the Closing DateEffective Time, subject to each Seller (the provisions “Indemnifying Parties”) shall severally indemnify, hold harmless and reimburse each of this Article 10Parent, the Securityholders jointly Surviving Corporation and severallyany employee, except as provided in Section 10.2(b)director, shall indemnifyofficer, defend and hold harmless Calavo Affiliate, agent or representative of each of them (the “Indemnified Parties”) for any demand, claim, payment, obligation, action or cause of action, assessment, loss, Liability, damage, cost, interest, award, judgment, penalty or expense (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) from and against any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties third party claims and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating expenses, but excluding any special or defending punitive damages unless arising in connection with any Actionsthird party claim or any willful, claims and proceedings intentional or knowing misrepresentation or fraud) (all of the foregoing being collectively referred to herein as collectively, “LossesDamages”) that such parties may incur based uponincurred or sustained by the Indemnified Parties, or any of them, arising out offrom, relating to to, or resulting fromin connection with, directly or indirectly:
(ia) Any any inaccuracy in or breach of any of the representations or warranties of the Company or any Seller in this Agreement or any Ancillary Agreement;
(b) any failure by the Company or any Seller to perform or comply with any covenant or agreement in this Agreement or in any Ancillary Agreement;
(c) any claims for appraisal or dissenters’ rights in Proceedings by or purportedly on behalf of any holder or former holder of any shares of Company Capital Stock or rights to acquire Company Capital Stock, where the amount of Damages are in excess of the proceeds otherwise payable to such holder or former holder under this Agreement;
(d) any inaccuracy or omission in the Spreadsheet, including any amounts set forth therein that are paid to a Person in excess of the amounts such Person is entitled to receive pursuant to the terms of this Agreement or any amounts a Person was entitled to receive pursuant to the terms of this Agreement that were omitted from the Spreadsheet;
(e) any willful, intentional or knowing misrepresentation or fraud by the Company in connection with this Agreement or the transactions contemplated hereby;
(f) all Taxes of the Company attributable to any Pre-Closing Tax Period (including all Taxes allocated to the portion of a Straddle Period ending on the Closing Date pursuant to Section 6.3(b)), all Taxes for which the Company is liable as a result of being a member of an affiliated, consolidated, combined, unitary or aggregate group prior to the Closing Date, and all Taxes for which the Company is liable as a result of being a transferee of or successor to any Person or, as a result of any obligation to indemnify (or otherwise assume or succeed to the Tax liability of) any other Person; and
(g) any matter set forth in Schedule 9.1 hereto (each a “Designated Matter”). For the purpose of determining the amount of Damages suffered by an Indemnified Party as a result of any breach of any representation or warranty made by of the Sellers in this Agreement Company or Principal Stockholder (including any exhibitbut not, schedule or other agreement or document delivered pursuant to this Agreementfor the avoidance of doubt, for determining the existence of such breach), subject to Section 10.2(b);
(ii) Any breach of, any representation or failure to perform, any agreement of any RFG Family Entity or any Seller warranty that is contained in this Agreement (including any exhibitqualified by a materiality or a Company Material Adverse Effect qualifier or standard shall be deemed breached if it is untrue or incorrect, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events without giving rise effect to such breaches materiality or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation Company Material Adverse Effect qualifier or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closingstandard.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Juno Therapeutics, Inc.)
Indemnification by the Sellers. (ai) From and after the Closing Date, subject to the provisions of this Article 10, the Securityholders jointly and severally, except as provided in Section 10.2(b), Each Seller shall indemnify, protect, defend and hold harmless Calavo (including Surviving RFG and save Buyer, each Opto-tech Entity and their SubsidiariesAffiliates (collectively, the “Buyer Parties”) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) harmless from and against the entirety of any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending Losses any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties Buyer Parties may incur based uponsuffer, sustain or become subject to, through and after the date of the claim for indemnification resulting from, arising from or out of, relating to to, in the nature of, or resulting from:
(i) Any caused by any breach or inaccuracy of any representation or warranty made by the Sellers of such Seller in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to Section 3.1 of this Agreement), subject to Section 10.2(b);.
(ii) Any breach The Sellers shall indemnify, protect, defend and hold and save the Buyer Parties harmless, from and against the entirety of any Losses any of the Buyer Parties may suffer, sustain or become subject to, through and after the date of the claim for indemnification, including without limitation any Losses any of the Buyer Parties may suffer after the end of the Survival Period (if applicable) if a claim is made before the end of the Survival Period, resulting from, arising from or out of, relating to, in the nature of, or failure to perform, caused by: (A) any agreement breach or inaccuracy of any RFG Family Entity representation or any Seller that is contained warranty relating to the Opto-tech Entities in Section 3.2 of this Agreement or in the Disclosure Schedule relating thereto delivered by them in connection herewith; (including B) any exhibit, schedule nonfulfillment or other breach of any covenant or agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to on the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as part of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller Opto-tech Entity or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign LawSellers set forth in this Agreement; and (C) any and all Taxes Indebtedness of any Person Opto-tech Entity as of the Closing or any Transaction Expenses that are not taken into account in the calculation of the True-Up Payments; or (other than the RFG Family EntitiesD) imposed on the RFG Family Entities as a transferee or successor, by Contract or any Liability for Taxes pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(viSection 5.3(a) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the ClosingAgreement.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 2 contracts
Samples: Quota Purchase Agreement, Quota Purchase Agreement (Faro Technologies Inc)
Indemnification by the Sellers. (a) From and after the Closing Date, subject Subject to the limitations and the provisions of set forth in this Article 10Agreement, the Securityholders Sellers shall jointly and severally, except as provided in Section 10.2(b), shall severally indemnify, defend reimburse and hold harmless Calavo (including Surviving RFG Buyer and their Subsidiaries) and each of their its officers, directors, shareholders, membersand Affiliates (collectively, employees, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities“Buyer Indemnified Parties”) from and against any and all losses, damagesdamages (but excluding any consequential, obligationsspecial or punitive damages unless awarded to a third party in connection with a third Party Claim), liabilities and other costs and expensesexpenses (including court costs, includingamounts paid in settlement, without limitationinterest, settlement costspenalties, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and or other costs and expenses for investigating and defending), suit, action, claim, liability or defending any Actionsobligation (collectively, claims and proceedings (all of the foregoing being collectively referred to herein as “LossesDamages”) that such parties may incur based uponrelated to, caused by or arising out of, relating to or resulting from:
(i) Any any breach of any representation or warranty made contained herein or in any other Transaction Documents by the Sellers in Sellers, or any allegations by third parties that, if true, would entitle any Buyer Indemnified Parties to indemnity under this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b7.2(a)(i);
(ii) Any any breach of, or failure to perform, any agreement nonfulfillment of any RFG Family Entity covenant or any Seller that is agreement contained in this Agreement (including any exhibit, schedule or other agreement or document delivered made pursuant to this Agreement)Agreement or any other Transaction Document by the Sellers, subject or any allegations by third parties that, if true, would entitle Buyer and its Affiliates to indemnity under this Section 10.2(b7.2(a)(ii);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of Excluded Liabilities and any liabilities arising from the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the ClosingExcluded Assets;
(iv) Any litigationany liabilities of the Sellers or any of their Affiliates arising after the Closing Date;
(v) any third party or Governmental Authority claims arising in breach of contract, arbitrationbreach of warranty, investigation product liability, unfair competition, personal or other injury, tort or infringement of property rights of others, Taxes, employee matters or other third party or Governmental Authority claims, in each case which claim is with respect to any and all activities of the Sellers or legal proceeding any Affiliate thereof in connection with the conduct of the Digester Business on or before the Closing Date (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought or before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior Closing Date with respect to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes activities of the Sellers or any Affiliate thereof in connection with the conduct of any Person (business other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing DateDigester Business); and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based uponActions, arising out ofincluding reasonable legal fees and expenses, relating to or resulting from (a) any breach by in enforcing this indemnity against the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the ClosingSellers.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Renovare Environmental, Inc.), Asset Purchase Agreement (Traqiq, Inc.)
Indemnification by the Sellers. (a) From and after the Closing Date, subject to the provisions of this Article 10Closing, the Securityholders jointly and severally, except as provided in Section 10.2(b), Sellers shall indemnify, defend and hold harmless Calavo (including Surviving RFG the Buyer and its Affiliates and their Subsidiaries) and each of their respective officers, directors, shareholders, members, employees, other Representativesagents and representatives (collectively, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) from and against any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “LossesBuyer Indemnified Parties”) against, and reimburse any Buyer Indemnified Party for, all Losses that such parties Buyer Indemnified Party may incur based uponat any time suffer or incur, arising out ofor become subject to, relating to as a result of or resulting fromin connection with:
(i) Any the inaccuracy or breach of any representation representations or warranty warranties made by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered in the certificates furnished by the Sellers pursuant to this Agreement), subject to Section 10.2(bSections 2.05(e) and 7.03(a);
(ii) Any any breach of, or failure by the Sellers to perform, perform any agreement of any RFG Family Entity their covenants or any Seller that is obligations contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);; or
(iii) With respect any Excluded Liability (including the failure of the Sellers to perform or in due course pay and discharge any Excluded Liability).
(b) Notwithstanding any other provision of this Agreement to the agreements contrary, (i) the Sellers shall not be required to which Surviving RFG indemnify, defend or its Subsidiaries is a party hold harmless any Buyer Indemnified Party against, or is otherwise bound as reimburse any Buyer Indemnified Party for, any Losses pursuant to Section 9.02(a)(i) until the aggregate amount of the ClosingBuyer Indemnified Parties’ Losses exceeds a dollar amount equal to $501,294.24 (the “Deductible Amount”), any breaches or defaults (or events giving rise to such breaches or defaults) by any after which the Sellers shall be obligated for all Losses of the RFG Family Entities that occurred prior Buyer Indemnified Parties pursuant to Section 9.02(a)(i) in excess of the Closing;
(iv) Any litigationDeductible Amount up to a dollar amount equal to $5,012,942.43; provided, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closinghowever, that is based upon or arises out of the limitations on indemnification set forth in this Section 9.02(b)(i) shall not apply to any actions or omissions made or taken by any Seller or any indemnification claim brought as a result of the RFG Family Entities prior to the Closing;
(A) All Taxes inaccuracy or breach of any of the RFG Family Entities for any taxable period ending on or prior to Fundamental Representations; (ii) the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any cumulative indemnification obligation of the RFG Family Entities is or was a member on or prior to Sellers under Section 9.02(a)(i) shall in no event exceed the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign LawPurchase Price; and (Ciii) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA indemnification obligation of the obligations Sellers under Section 9.02(a)(i) with respect to a breach of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
Section 3.22 (viiTax Matters) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and shall not be subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the ClosingDeductible Amount.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Coca Cola Bottling Co Consolidated /De/)
Indemnification by the Sellers. (a) From Subject to SECTION 9.7, from and after the Closing DateInitial Closing, subject to each of the provisions of this Article 10Sellers shall, the Securityholders jointly severally and severallynot jointly, except as provided in Section 10.2(b)indemnify, shall indemnifyreimburse, defend and hold harmless Calavo (including Surviving RFG AIMCO and their Subsidiaries) and each of their officersits Representatives for, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) from and against all demands, claims, actions, causes of action and Damages, asserted against, resulting to, imposed on or suffered or incurred by AIMCO or its Representatives, directly or indirectly, in connection with any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting fromfollowing:
(ia) Any any breach of of, or inaccuracy in, any representation or warranty made by the Sellers of such Seller in this Agreement (including or any exhibitcertificate, schedule instrument or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, hereto or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trustconnection herewith;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision covenant of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.contained in this Agreement;
(c) Notwithstanding claims made by any member of the Oxford Group arising in connection with the sale of the Shares hereunder other than claims arising (i) as a result of AIMCO not meeting the definition of a "Qualified Purchaser" under the Stock and Asset Transfer Restrictions Agreement, or (ii) as a result of AIMCO failing to satisfy the net worth or managed units requirements of Section 10.2(a4 of the Stock and Asset Transfer Restrictions Agreement (iii) as a result of a "Termination for Financial Performance," as defined in any Oxford Management Contract, based on the relevant property's financial performance after the Initial Closing Date, (iv) as a result of a "For Cause Termination," as defined in any Oxford Management Contract, based on an event or circumstance arising after the Initial Closing Date, unless, and 10.2(b)to the extent that, any such event or circumstance arises as a Securityholder shall not be deemed result of any action or inaction by NHP, the Sellers or any of their affiliates prior to have agreed the Initial Closing Date, (v) as a result of any failure by AIMCO to indemnify another Seller satisfy any fiduciary obligations (whether express or implied) under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).any Oxford Management Contract after the Initial Closing Date; or
(d) Notwithstanding anything the loss by NHP or any of its subsidiaries, or modification in a manner adverse to NHP or any of its subsidiaries, of any right or benefit under, or any termination, cancellation or non-renewal of, any Oxford Management Contract, and such loss, modification, termination, cancellation or non-renewal occurs on or before the first anniversary of the Initial Closing Date, unless such loss, modification, termination, cancellation or non-renewal occurs (i) as a result of AIMCO not meeting the definition of a "Qualified Purchaser" under the Stock and Asset Transfer Restrictions Agreement, (ii) as a result of AIMCO failing to satisfy the net worth or managed units requirements of Section 10.5(a4 of the Stock and Asset Transfer Restrictions Agreement, (iii) to as a result of a "Termination for Financial Performance," as defined in such Oxford Management Contract, based on the contraryrelevant property's financial performance after the Initial Closing Date, Xx. X. Catchot(iv) as a result of a "For Cause Termination," as defined in such Oxford Management Contract, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliatesbased on an event or circumstance arising after the Initial Closing Date, to the extent their Affiliates receive any payments from Liberty Fresh Foodsunless, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foodsthat, LLC defaults on its any such event or circumstance arises as a result of any action or inaction by NHP, the Sellers or any of their affiliates prior to the Initial Closing Date, (v) as a result of any failure by AIMCO to satisfy any fiduciary obligations pursuant to this Article 10(whether express or implied) under any such Oxford Management Contract after the Initial Closing Date, or (vi) at the request or with the consent of AIMCO.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Apartment Investment & Management Co), Stock Purchase Agreement (Apartment Investment & Management Co)
Indemnification by the Sellers. (a) From Each Seller, severally as to itself and after not jointly, shall indemnify the Closing DatePurchaser and REG and their respective Affiliates, subject to the provisions of this Article 10partners, managers, directors, officers and employees (collectively, the Securityholders jointly “Purchaser’s Indemnified Parties”) from, and severally, except as provided in Section 10.2(b), shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officersthem harmless against, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) from and against any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating Losses resulting from or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting from:
(i) Any breach or inaccuracy in any representation or warranty made by such Seller with respect to such Seller under Article II of this Agreement, the Company Disclosure Schedule hereto, or any certificate delivered or to be delivered to REG and the Purchaser by any Seller regarding Article II hereto;
(ii) Any breach or nonfulfillment of any covenant, agreement or other obligation of such Seller under this Agreement (excluding any schedules or exhibits attached hereto) or any certificate delivered pursuant hereto.
(b) Each Member, severally and not jointly, in accordance with their respective proportionate ownership of the Company Membership Interest on the Effective Date (which shall be 77.8% for BIG and 22.2% for Bunge), shall indemnify the Purchaser’s Indemnified Parties from, and defend and hold each of them harmless against, any and all Losses resulting from or arising out of:
(i) Any breach or inaccuracy in any representation or warranty made by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant Company with respect to the Company under Article II of this Agreement), subject the Company Disclosure Schedule hereto, or any certificate delivered or to Section 10.2(b)be delivered to REG and the Purchaser by any Member regarding Article II hereto;
(ii) Any breach of, or failure to perform, any agreement nonfulfillment of any RFG Family Entity covenant, agreement or any Seller that is contained in other obligation of the Company under this Agreement (including excluding any exhibit, schedule schedules or other agreement exhibits attached hereto) or document any certificate delivered pursuant to this Agreement), subject to Section 10.2(b);hereto; or
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the ClosingUnsuccessful Performance Testing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Blackhawk Biofuels, LLC), Asset Purchase Agreement (Blackhawk Biofuels, LLC)
Indemnification by the Sellers. The Sellers agree to indemnify and --------------------------------- hold harmless JRT and JRC and/or MTT against and in respect to all damages (aas hereinafter defined) From and after the Closing Datein excess of $500.00. Damages, subject to the provisions of this Article 10as used herein shall include any claim, the Securityholders jointly and severallysalary, except as provided in Section 10.2(bwage, action, tax, demand, loss, cost, expense, liability (joint or several), shall indemnifypenalty, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) from and against any and all losses, damages, obligations, liabilities and other costs and expensesdamage, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ counsel fees and other costs and expenses for reasonably incurred in investigating or defending attempting to avoid same or in opposition to the imposition thereof, or in enforcing this indemnity, resulting to JRT and JRC and/or MTT from any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting from:
(i) Any breach of any inaccurate representation or warranty made by or on behalf of the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject breach of any of the warranties made by or on behalf of the Sellers in or pursuant to Section 10.2(b);
this Agreement, or breach or default in the performance by the Sellers of any of the obligations to be performed by them hereunder. Hereunder, JRT and JRC shall determine whether JRT and JRC, MTT or JRT and JRC and MTT are entitled to be indemnified and such determination shall be binding on the Sellers. Notwithstanding the scope of the Sellers' representations and warranties herein, or of any individual representation or warranty, or any disclosure to JRT and JRC herein or pursuant hereto, or the definition of damages contained in the preceding sentence, or JRT's and JRC's knowledge of any fact or facts at or prior to the Closing, damages shall also include: all debts, liabilities, and obligations of any nature whatsoever (whether absolute, accrued, contingent, or otherwise, and whether due or to become due) of MTT, as of the date hereof not reflected in the Financial Statement or any other exhibit furnished hereunder, whether known or unknown by the Sellers; all claims, actions, demands, losses, costs, expenses, and liabilities resulting from any litigation from causes of action arising prior to the Closing hereunder involving MTT or any owners thereof other than the Sellers, whether or not disclosed to JRT and JRC; all claims, actions, demands, losses, costs, expenses, liabilities and penalties resulting from (i) MTT's infringement or claimed infringement upon or acting adversely to the rights or claimed rights of any person under or in respect to any copyrights, trademarks, trademark rights, patents, patent rights or patent licenses; or (ii) Any breach ofany claim or pending or threatened action with respect to the matters described in clause (i); all claims, actions, demands, losses, costs, expenses, liabilities or penalties resulting from MTT's failure in any respect to perform any obligation required by it to be performed at or prior to the effective date hereof or at or prior to the Closing, or failure to perform, any agreement by reason of any RFG Family Entity default of MTT, at the effective date hereof or at the Closing, under any Seller that of the contracts, agreements, leases, documents, or other commitments to which it is a party or otherwise bound or affected; and all losses, costs, and expenses (including without limitation all fees and disbursements of counsel) relating to damages. Khan shall reimburse and/or pay in the form of up to 10,000,000 shares of JRC Common Stock on behalf of JRT and JRC and/or MTT on demand for any payment made or required to be made by JRT and JRC and/or MTT at any time after the Closing based upon the judgment of any court of competent jurisdiction or pursuant to a bona fide compromise or settlement of claims, demands or actions, in respect to the damages to which the foregoing indemnity relates. JRT and JRC shall give, or JRT and JRC shall cause MTT to give Khan written notice within 30 days after notification of any litigation threatened or instituted against MTT which might constitute the basis of a claim for indemnity by JRT and JRC and/or MTT against Khan. Notwithstanding anything contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchotthe right to indemnification described in this paragraph shall expire one year after the Closing hereunder, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliatesexcept in the case of the proven fraud by the Sellers hereunder as determined by a court of competent jurisdiction in connection with any such claim for indemnification, in which event such right to indemnification shall expire one year after the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations discovery of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10such fraud.
Appears in 2 contracts
Samples: LLC Interest Purchase Agreement (Jackson Rivers Co), LLC Interest Purchase Agreement (Jackson Rivers Co)
Indemnification by the Sellers. (a) From and after the Closing Date, subject to each of the provisions of this Article 10Sellers, the Securityholders jointly and severally, except as provided in Section 10.2(b), shall indemnify, defend and hold harmless Calavo (including theglobe, Merger Sub, the Surviving RFG and their Subsidiaries) Corporation, the Subsidiary and each of their respective Affiliates, officers, directors, shareholdersemployees, members, employeesagents, other Representativessuccessors, Affiliates, successors transferees and permitted assigns (excluding the Sellers to the extent they serve in any such capacitiescollectively, "theglobe Indemnified Group") from and against all Losses incurred or suffered by any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all member of the foregoing being collectively referred to herein as “Losses”) that such parties may incur theglobe Indemnified Group based upon, resulting from or arising out of, relating to or resulting from:
of (i) Any the breach of any representation or warranty made by of any of the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is the Company contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to Ancillary Documents, (ii) the Closing;
(A) All Taxes breach of any covenant or agreement of any of the RFG Family Entities Sellers (provided, however, that in no event will any Seller be liable for any taxable period ending on breach of the covenants contained in Section 5.8 of this Agreement by any other Seller) or the Company (but with respect to the Company only for breaches of covenants and agreements to be performed prior to or at the Closing Date, (BEffective Time) all Taxes of any member of an affiliated, combined contained in this Agreement or unitary group of which any of the RFG Family Entities is or Ancillary Documents, (iii) any Indebtedness, other than pursuant to the Conveyance Agreement and any portion of the Non-Permitted Indebtedness Amount (including Indebtedness pursuant to the Demand Notes) for which the Aggregate Consideration was a member on or reduced, incurred prior to or at the Effective Time which remains outstanding at the Effective Time (the Losses to include the dollar amount of any such Indebtedness), (iv) the exercise of dissenters' rights by holders of Dissenting Shares (the Losses to include the entire amount of any payments required to be made by the Company in respect of dissenters' rights), (v) any inaccuracies in the Closing DateCertificate, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments any claims relating to shares of Company Common Stock issued, and warrants, options or other Losses made equity awards granted, by the Company, and (vii) any claims relating to or incurred by involving the treatment of any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity Options granted prior to the Closing Date as "incentive stock options" within the meaning of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA Section 422 of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;Code.
(b) From and The Sellers' indemnification obligations pursuant to Section 8.3(a)(i) shall be effective only after the Closing amount of Losses, in the aggregate, incurred by theglobe Indemnified Group exceed $250,000 (the "Basket"), and subject if such aggregate liabilities exceed the Basket the Sellers shall be liable for the dollar value of such liabilities in excess of the Basket, but only to the provisions extent such Losses exceed the Basket. The Basket shall not be applicable to a breach of this Article 10the representations and warranties in Sections 3.3, each 3.6(b), 3.18 and 3.20(i). The maximum amount recoverable, in the aggregate, under Section 8.3(a)(i) from any Seller severally shall be an amount in cash equal to the product of (and not jointlyx) shall indemnifythe Issuable Shares issued to such Seller multiplied by (y) the Reference Share Price (each, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officersa "Seller Cap"); provided, directorshowever, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller Caps shall not be applicable to amounts recoverable as a result of a breach of the representations and warranties contained in Sections 3.3, 3.6(b), 3.18 and 3.20(i).
(c) The materiality (or correlative meaning) qualifications included in the representations and warranties set forth in Article 4, (b) III shall have no effect on any unpaid Taxes provisions in this Section 8.3 concerning the indemnities of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable with respect to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) representations and 10.2(b)warranties, a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason each of which is given as though there were no materiality qualification for purposes of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries)indemnities.
(d) Notwithstanding anything in Section 10.5(aThe Company and theglobe each acknowledge and agree that, except (i) as expressly otherwise provided herein or (ii) to the contraryextent any Losses incurred by such Party result from any fraudulent misrepresentation by the Sellers or (prior to or at the Effective Time) the Company, Xx. X. Catchottheglobe Indemnified Group's sole and exclusive economic remedy with respect to any and all claims based upon, Xx. X. Catchot and Xx. Xxxxxx resulting from or arising out of the breach of this Agreement or any Ancillary Document by the Sellers or (and their Affiliates, prior to or at the Effective Time) the Company shall be pursuant to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations indemnification provisions of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10VIII.
Appears in 2 contracts
Samples: Merger Agreement (Theglobe Com Inc), Merger Agreement (Theglobe Com Inc)
Indemnification by the Sellers. (a) From Subject to the limitations set forth in Sections 10.1, 10.4 and 10.5, after the Closing Date, subject to the provisions of this Article 10, the Securityholders Major Sellers shall jointly and severally, except as provided in Section 10.2(b), shall severally indemnify, defend and hold harmless Calavo the Buyer, its Affiliates (including Surviving RFG the Company) and their Subsidiaries) and each of their directors, officers, directors, shareholders, members, employees, other Representatives, Affiliatesagents, successors and permitted assigns (excluding collectively, the Sellers to the extent they serve in any such capacities“Buyer Indemnified Persons”) from and against against, and shall pay and reimburse the foregoing Persons for, any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating Losses relating to or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting from:
(i) Any the breach (or alleged breach if asserted by a third party) of any representation or warranty made in Section 3 of this Agreement or in any certificate delivered by or on behalf of the Company in connection herewith, or any covenant or agreement of any of the Sellers (other than breaches of Sections 6.7 or 11) or the Company contained in this Agreement (including or in any exhibit, schedule certificate delivered by or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b)on behalf of the Company in connection herewith;
(ii) Any breach ofacts or omissions of the Company or the conduct of the business or operations of the Company prior to September 25, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);2007; or
(iii) With respect the failure of the Sellers to pay or reimburse the Company for any Seller Transaction Expenses in accordance with Section 12.5.
(b) Subject to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closinglimitations set forth in Sections 10.1, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation10.4 and 10.5, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller shall severally (and not jointly) shall jointly indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns Buyer Indemnified Persons from and against against, and shall pay and reimburse the foregoing Persons for, any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from arising out of the breach (aor alleged breach if asserted by a third party) of any representation or warranty of such Seller in Section 4 of this Agreement or in any certificate delivered by or on behalf of such Seller in connection herewith or the breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the such Seller of any covenants applicable to covenant or agreement of such Seller after the Closingin Sections 6.2, 6.3, 6.4, 6.5, 6.7, 6.10, 6.11, 6.13, 6.16, 6.17 or 11 of this Agreement.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 2 contracts
Samples: Share Purchase Agreement (Par Pharmaceutical Companies, Inc.), Share Purchase Agreement (Par Pharmaceutical Companies, Inc.)
Indemnification by the Sellers. (a) From Subject to the limitations set forth herein, after the Closing, each of the Sellers shall (jointly and severally in the case of the Highstar Sellers, and severally, but not jointly in the case of American General Life Insurance Company), in accordance with its Pro Rata Share (with such Pro Rata Share limitation applicable only in respect of breaches of the representations and warranties contained in Article IV), indemnify and defend the Buyer against, and shall hold the Buyer, its Representatives and its Affiliates (including the Company), each of their respective shareholders, members, partners, officers, directors, managers, employees, agents, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Buyer Indemnitees”) harmless from, any loss, liability, claim, charge, action, suit, proceeding, assessed interest, penalty, damage, Tax or expense (collectively, “Losses”) resulting from, arising out of or incurred by such Buyer Indemnitee in connection with, or otherwise with respect to, (i) any breach of any representation and warranty of such Seller contained in Article III or Article IV, (ii) any breach of the covenants or agreements of such Seller (with respect to the Company and its Subsidiaries, only in respect of covenants and agreements that are required to be performed prior to or contemporaneously with the Closing) contained in this Agreement, (iii) any Income Taxes paid after the date hereof that are attributable to a Pre-Signing Taxable Period or the Pre-Signing portion of any Straddle Taxable Period pursuant to Section 6.9, (iv) any Income Taxes which the Company or any Subsidiary has paid or for which the Company or any Subsidiary is liable in connection with the consummation of the Bayside Transaction, the Xxxxxxxxx Farms Transaction, the Cabarrus Xxxxx Transaction and the Xxxxx Creek Transaction, as applicable, and Transfer Taxes for which Sellers are liable pursuant to Section 6.8 and (iv) any indemnification or other post-closing obligations in respect of the Bayside Transaction, the Cabarrus Xxxxx Transaction, the Xxxxxxxxx Farms Transaction and the Xxxxx Creek Transaction and any liabilities remaining with the Company or any Subsidiary in respect of the assets sold pursuant to such transactions. If any representation or warranty contained herein is limited or qualified based on materiality, including the terms “material,” “Material Adverse Effect” or similar qualifications, such limitation or qualification shall in all respects be ignored and given no effect for purposes of determining the amount of Losses resulting from any breach of any such representation or warranty, but shall not be ignored for purposes of determining if there has been such a breach.
(b) No Seller shall be liable for any Loss or Losses (i) unless the claim for such Loss or Losses is brought within the Applicable Survival Period and (ii) with respect to claims for Losses under Section 9.2(a)(i) (other than a Loss or Losses arising from a breach of any Fundamental Representation or a breach of Section 4.18), unless and until the aggregate amount of all Losses incurred by Buyer Indemnitees exceeds (the “Deductible”), and then only to the extent that such Losses exceed the Deductible; provided, that the cumulative indemnification obligation of the Sellers under Section 9.2(a)(i), other than with respect to a Loss or Losses arising from a breach of any Fundamental Representations or a breach of Section 4.15 or Section 4.18) shall in no event exceed in the aggregate; provided, further, that the cumulative indemnification obligations of the Sellers under this Article IX, with respect to any Loss or Losses shall in no event exceed the Base Purchase Price in the aggregate (the “Indemnity Cap”).
(c) In addition to the limitations set forth in Section 9.2(b), with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 4.13 (Environmental), the Sellers shall not have an obligation to indemnify any Indemnitee for Losses arising out of a remediation that exceeds the least restrictive standard or remedy acceptable under Environmental Law based on the uses of the property in question as of the Closing Date, which remedy may rely on the use of engineering or institutional controls if acceptable under applicable Environmental Law; provided, that said Indemnitee shall not be required to limit its remediation to such a standard if such remediation (including the use of engineering or institutional controls) (x) would unduly interfere with on-going operations at said property and (y) would require Indemnitee to incur on-going operations and monitoring costs after completion of the remediation, unless Seller agrees to reimburse Indemnitee for the costs and expense that are expected to be incurred over the life of the operations and monitoring period (not to exceed 30 years).
(d) In addition to the limitations set forth in Section 9.2(b), the Sellers shall not be obligated to indemnify any Buyer Indemnitee under this Section 9.2 with respect to any indirect, special, incidental, consequential or punitive damages, other than such damages payable by a Buyer Indemnitee pursuant to a Third Party Claim.
(e) No Buyer Indemnitee shall have any claim or right to indemnification pursuant to this Article IX or otherwise, and none of the Sellers or any other Person shall have or be subject to any liability to any Buyer Indemnitee or any other Person, with respect to any Evaluation Material.
(f) The Buyer acknowledges and agrees that, should the provisions of this Article 10Closing occur, the Securityholders jointly and severally, except as provided in Section 10.2(b), shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) its and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors Buyer Indemnitee’s sole and permitted assigns (excluding the Sellers exclusive remedy with respect to the extent they serve in any such capacities) from and against any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, matters arising out of, relating to or resulting from:
(i) Any breach of any representation or warranty made by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to connected with this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG Company or its Subsidiaries is a party or is otherwise bound as of and their respective assets and liabilities, the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of transactions contemplated hereby and the RFG Family Entities that occurred prior Company Interests shall be pursuant to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the indemnification provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10IX.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement
Indemnification by the Sellers. (a) From The Sellers will jointly and after severally indemnify in full the Closing DateBuyer Parties and hold them harmless against any Loss, subject whether or not actually incurred prior to the provisions of this Article 10, the Securityholders jointly and severally, except as provided applicable date referred to in Section 10.2(b10.1(d), shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) from and against any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out offrom, relating to or resulting from:
constituting: (i) Any any breach or inaccuracy in any of any representation or warranty made by the representations and warranties of the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including or in the Disclosure Schedule, or in the Closing Update or any exhibit, schedule closing certificate delivered by or other agreement or document delivered on behalf of the Sellers pursuant to this AgreementAgreement (any such breach or inaccuracy to be determined without regard to any qualification for “materiality,” “in all material respects” or similar qualification), subject to Section 10.2(b);
; (iiiii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as any liability of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Sellers for Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring incurred on or prior to the Closing Date; and
(viiii) All payments failure of the Sellers to pay and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of discharge the obligations of LIG Partnersthe Sellers not explicitly assumed by Buyers pursuant to this Agreement, LLC owed including the Retained Liabilities; (iv) any breach of any of the agreements of the Sellers contained in this Agreement; (v) any claim made by a securityholder or creditor of USUL; and (iv) the application to Umpqua Bank and EDF Resource Capitalany Seller of any bankruptcy, Inc.; and
(vii) Any litigationinsolvency, arbitrationreorganization, investigation moratorium or other claim or legal proceedingLaw affecting the enforcement of creditors’ rights (collectively, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;“Buyer Losses”).
(b) From The Sellers will indemnify Buyer Parties for Buyer Losses (i) resulting from breaches or inaccuracies of Sections 3.5 through 3.17 and after (ii) pursuant to Section 10.1(a)(ii) only if the Closing and subject aggregate amount of all Buyer Losses attributable to the provisions of this Article 10, each Seller severally clauses (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiariesi) and each (ii) exceeds $250,000 (the “Basket Amount”), in which case the Sellers will be liable for the aggregate amount of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Buyer Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller in excess of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the ClosingBasket Amount.
(c) Notwithstanding The Sellers’ liability will not exceed the Indemnification Limit for Buyer Losses (i) resulting from breaches or inaccuracies of Sections 3.5 through 3.17, and (ii) pursuant to Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries10.1(a)(ii).
(d) Notwithstanding anything If Buyer Parties have a claim for indemnification under this Section 10.1, Buyer Parties will deliver to USE, as agent for the Sellers, one or more written notices of Buyer Losses (each a “Buyer Claim”), within 18 months after the Closing Date, except for Buyer Losses arising from (i) a breach or inaccuracy in the representations and warranties made in Section 10.5(a3.7, (ii) any breach of any of the agreements by the Sellers made in Articles II, V, VI, VII, X or XI of this Agreement, (iii) failure of the Sellers to pay and discharge the contraryobligations of the Sellers not explicitly assumed by Buyers pursuant to this Agreement, Xxincluding the Retained Liabilities; (iv) any claim made by a securityholder or creditor of USUL; and (v) the application to any Seller of any bankruptcy, insolvency, reorganization, moratorium or other Law affecting the enforcement of creditors’ rights, for which Buyer Parties will deliver a Buyer Claim prior to six months after the expiration of the applicable statute of limitations. X. Catchot, XxThe Sellers will have no liability under this Section 10.1 unless the written notices required by the preceding sentence are given by the date specified. X. Catchot and Xx. Xxxxxx (and their Affiliates, Any Buyer Claim will state in reasonable detail the basis for such Buyer Losses to the extent then known by Buyer and the nature of the Buyer Loss for which indemnification is sought, and it may state the amount of the Buyer Loss claimed. If such Buyer Claim (or an amended Buyer Claim) states the amount of the Buyer Loss claimed and the Sellers notify Buyer Parties that the Sellers do not dispute the claim described in such notice or fail to notify Buyer Parties within 20 Business Days after delivery of such notice by Buyer Parties whether the Sellers dispute the claim described in such notice, the Buyer Loss in the amount specified in Buyer Parties’ notice will be admitted by the Sellers, and the Sellers will pay the amount of such Buyer Loss to Buyer Parties. If the Sellers have timely disputed the liability of the Sellers with respect to a Buyer Claim (or an amended Buyer Claim) stating the amount of a Buyer Loss claimed, the Sellers and Buyer Parties will proceed in good faith to negotiate a resolution of such dispute. If a claim for indemnification has not been resolved within 30 days after delivery of the Sellers’ notice, Buyer Parties may seek judicial recourse. If a Buyer Claim does not state the amount of the Buyer Loss claimed, such omission will not preclude Buyer Parties from recovering from the Sellers the amount of the Buyer Loss described in such Buyer Claim if any such amount is subsequently provided in an amended Buyer Claim. In order to assert its right to indemnification under this Article X, Buyer Parties will not be required to provide any notice except as provided in this Section 10.1(d).
(e) The Sellers will pay the amount of any Buyer Loss to Buyer Parties within 10 days following the determination of the Sellers’ liability for and the amount of a Buyer Loss (whether such determination is made pursuant to the procedures set forth in this Section 10.1(e), by agreement between Buyer Parties and the Sellers, by arbitration award or by final adjudication).
(f) If the Sellers breach their Affiliates receive obligations in Section 10.1(e), Buyer Parties may elect to recoup all or any payments from Liberty Fresh Foods, LLC) agree part of the unpaid amount of the Buyer Loss by offsetting the amount of any payment required to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations made pursuant to this Article 10Section 2.6 or the Royalty Agreement and by notifying USE, as agent for the Sellers, of such election.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Crested Corp), Asset Purchase Agreement (Us Energy Corp)
Indemnification by the Sellers. (a) From Subject to the limitations set forth in this Article 9, from and after the Closing Date, subject to the provisions of this Article 10each Seller shall, the Securityholders jointly severally and severallyjointly, except as provided in Section 10.2(b), shall indemnify, defend indemnify and hold harmless Calavo (including Surviving RFG and their Subsidiaries) Buyer and each of their its Affiliates, Subsidiaries, officers, directors, shareholdersmembers, partners (general and limited), managers, employees, agents and other representatives and Affiliates, Subsidiaries, officers, directors, members, partners (general and limited), managers, employees, agents and other Representativesrepresentatives thereof as well as the successors, Affiliatesassigns, successors heirs and permitted assigns personal representatives of the foregoing (excluding collectively, the Sellers to the extent they serve “Buyer Indemnified Persons”) from, against and in any such capacities) from and against respect of any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating Losses actually incurred or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein suffered by such Buyer Indemnified Persons as “Losses”) that such parties may incur based upon, arising out a result of, relating to or resulting from:
(ia) Any any breach of of, or inaccuracy in, any representation or warranty made by the Sellers any Seller in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes or violation of any Seller under Treasury Regulation Section 1.1502Pre-6 (Closing Covenant or Post-Closing Covenant by any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and Seller;
(c) any breach by Closing Indebtedness;
(d) any Company Transaction Expenses, but only to the Seller extent the Company Transaction Expenses exceed the amount included when determining the Final Purchase Price;
(e) (i) all Taxes imposed on the Acquired Companies with respect to all Pre-Closing Tax Periods, including without limitation (A) any liability for Tax arising as a result of inclusion of any covenants applicable Acquired Company in an Affiliated Group or any Tax Return with respect thereto for Pre-Closing Seller Tax Period, (B) any liability for any Pre-Closing Tax Period arising as a result of participation by any Acquired Company in any tax sharing, tax indemnity or similar agreement for any Pre-Closing Tax Period, (C) Taxes for which any Seller is responsible pursuant to such Seller after Section 7.8, Section 7.9.5 (other than amounts related to the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(bTax Adjustment), Section 7.17 or any other provision of this Agreement, (D) all liability for Taxes of any Acquired Company arising (directly or indirectly) as a Securityholder shall not be deemed to have agreed to indemnify another Seller result of the transactions contemplated by this Agreement, (E) any income item of adjustment (as, for example, under Section 10.2(a481 of the Code) in any period necessary to implement a change of accounting made in any Pre-Closing Tax Period, including without limitation any income item of adjustment in connection with the matters described on Section 3.8.9 of the Disclosure Schedules, and (F) restoration of any deferral of income (or 10.2(bsimilar inclusion into the income currently to be taxed under applicable Legal Requirements) under federal consolidated return regulations (or similar provisions, if any, of state, local, or foreign Tax law) by reason of any transaction contemplated under this Agreement (such other Seller’s position as the triggering of a deferred intercompany transaction under Treasury Regulations §1.1502-13), (ii) any liability for Taxes in any period arising (directly or indirectly) as a result of any amendment to any Pre-Closing Period Tax Return of any Acquired Company or any Affiliated Group of which an officerAcquired Company was a member; provided, directorhowever, shareholderthat, member except as explicitly set forth in this Agreement, neither Seller shall have any indemnification obligation for any Tax resulting from an action of an Acquired Company or employee Buyer on the Closing Date after control of Calavo (including Surviving RFG and their Subsidiaries).the Acquired Companies has passed to Buyer;
(df) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations to pay the Earn-Out Amount under the Asset Agreement;
(g) any Loss related to or arising from the Xxxx Employees Transfer; or
(h) up to $807,852 of Liberty Fresh Foods, LLC, if and Losses related to or arising from the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.matter described in item 2 of Section 3.5.2
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (Providence Service Corp), Membership Interest Purchase Agreement (Molina Healthcare Inc)
Indemnification by the Sellers. (a) From and after the Closing Date, subject Subject to the provisions of limitations set forth in this Article 10ARTICLE XII, each Seller hereby covenants and agrees that to the Securityholders jointly and severallyfullest extent permitted by Law, except as provided in Section 10.2(b)such Seller will defend, shall indemnify, defend indemnify and hold harmless Calavo (including Surviving RFG Buyer and their Subsidiaries) and each of their its officers, directors, shareholders, membersmanagers, employees, other Representatives, Affiliates, agents and Affiliates and successors and permitted assigns of the foregoing (excluding collectively, the Sellers to the extent they serve in any such capacities“Buyer Indemnified Parties”) for, from and against any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending Losses actually sustained by any Actions, claims and proceedings (all of such Persons following the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or Closing resulting from:
(ia) Any any breach of any a representation or warranty made by the Sellers Company in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b)ARTICLE III;
(iib) Any any breach of, of a representation or failure to perform, any agreement of any RFG Family Entity or any warranty made by such Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b)ARTICLE IV;
(iiic) With respect (i) any Loss attributable to the agreements to which Surviving RFG any breach of any covenant, agreement, undertaking or its Subsidiaries is a party or is otherwise bound as obligation in ARTICLE XI; (ii) all Taxes of the Closing, any breaches or defaults Company for all Pre-Closing Tax Periods; (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (Biii) all Taxes of any member of an affiliated, consolidated, combined or unitary group of which the Company (or any predecessor of the RFG Family Entities Company) is or was a member on or prior to the Closing Date, including pursuant to Date by reason of a liability under Treasury Regulation Section 1.1502-6 or any analogous comparable or similar state, local or foreign Law; and (Civ) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a Company arising under the principles of transferee or successorsuccessor liability or by Contract, by Contract or pursuant relating to any Law, which Taxes relate to an event or transaction occurring on or prior to before the Closing Date; and
(vi) All payments and other Losses made or incurred by . Notwithstanding anything herein to the contrary, any RFG Family Entity after the Closing Date that are Loss in respect of Taxes shall be limited to Taxes attributable to any guarantees executed by such RFG Family Entity prior to the Pre-Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the TrustTax Periods;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (ad) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (Company or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the such Seller of any covenants applicable to agreement or covenant made by the Company or such Seller after the Closing.contained in this Agreement; and/or
(ce) Notwithstanding Section 10.2(a) and 10.2(b)any claim by any Person for any brokerage or finder’s fee, a Securityholder shall not be deemed commission or similar payment based upon any agreement or understanding alleged to have agreed to indemnify another Seller under Section 10.2(a) been made by such Person with the Company or 10.2(b) by reason the Sellers or representatives thereof in connection with this Agreement or any of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries)the transactions contemplated hereby.
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Flowers Foods Inc), Stock Purchase Agreement (Flowers Foods Inc)
Indemnification by the Sellers. (a) From and after the Closing Date, subject Subject to the provisions other terms and conditions of this Article 10VIII, the Securityholders Sellers, jointly and severally, except as provided in Section 10.2(b), shall indemnify, indemnify and defend and hold harmless Calavo (including Surviving RFG each of Buyers and their SubsidiariesAffiliates and their respective Representatives (collectively, the “Buyer Indemnitees”) against, and shall hold each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) them harmless from and against any against, and shall pay and reimburse each of them for, all lossesLosses incurred or sustained by, damagesor imposed upon, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur Buyer Indemnitees based upon, arising out of, relating with respect to or resulting fromby reason of:
(ia) Any any inaccuracy in or breach of any representation of the representations or warranty made warranties of the Sellers contained in this Agreement, the other Transaction Documents or in any certificate or instrument delivered by or on behalf of the Sellers pursuant to the Transaction Documents;
(b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject the other Transaction Documents or any certificate or instrument delivered by or on behalf of the Sellers pursuant to Section 10.2(b)the Transaction Documents;
(iic) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b)Excluded Liability;
(iiid) With respect any Liabilities of the Sellers and Kylie in relation to the agreements 17173 Business or the Purchased Assets or the Excluded IP Assets License (other than the Assumed Liabilities) which the Buyers are obligated, by operation of law or otherwise, to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of assume, to the extent such Liabilities in aggregate exceed US$200,000; or
(e) the Intellectual Property Assets (excluding the Excluded IP Assets) (together with Sellers’ rights under the Intellectual Property Licenses) transferred to the Buyers on the date hereof and at the Closing, any breaches or defaults (or events giving rise and the Excluded IP Assets License granted to such breaches or defaults) by any the Buyers at the Closing, being insufficient for the continued conduct of the RFG Family Entities that occurred 17173 Business after the Closing in substantially the same manner as conducted prior to the Closing;
(ivf) Any litigation, arbitration, investigation Taxes of or other claim or legal proceeding (including, without limitation, imposed on Kylie for any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;Pre-Closing Tax Period; or
(Ag) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than including the RFG Family Entities) imposed on the RFG Family Entities as a transferee Sellers, its stockholders or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA Sellers) imposed with respect to the transfer of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out Purchased Assets as a result of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions application of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the ClosingCircular 698.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 2 contracts
Samples: Master Transaction Agreement (Changyou.com LTD), Master Transaction Agreement (Sohu Com Inc)
Indemnification by the Sellers. (a) From Subject to any applicable limitations in this Section 8.2, from and after the Closing Date, subject to the provisions of this Article 10Closing, the Securityholders jointly Sellers, severally and severallynot jointly, except as provided in Section 10.2(b), shall agree to indemnify, defend and hold harmless Calavo (including Surviving RFG save the Buyer and their Subsidiaries) its Affiliates, and each of their respective officers, directors, shareholders, membersmanagers, employees, equityholders, agents, Employee Benefit Plans and fiduciaries, plan administrators or other Representativesparties dealing with such plans (each, Affiliatesa “Buyer Indemnified Party”), successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) harmless from and against against, and to promptly pay to each Buyer Indemnified Party or reimburse each Buyer Indemnified Party for, any and all losses, Losses (but excluding lost profits and exemplary or special damages, obligationsunless such profits or damages are paid or payable by any Buyer Indemnified Party in connection with a Third Party Claim) sustained or incurred by any such Buyer Indemnified Party relating to, liabilities and other costs and expensesresulting from, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending otherwise arising out of any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting fromfollowing:
(i) Any any breach or inaccuracy, or claim alleging a breach or inaccuracy, of any a representation or warranty made by the Sellers in this Agreement (including or in any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b)of the Transaction Documents by any of the Sellers;
(ii) Any any non-compliance with or breach of, or failure to perform, by any agreement Seller of any RFG Family Entity of the covenants or any Seller that is agreements contained in this Agreement (including or any exhibit, schedule or other agreement or document delivered pursuant of the Transaction Documents to this Agreement), subject to Section 10.2(b)be performed by such Seller;
(iii) With respect any Liability of any Company, or any assertion against a Buyer Indemnified Party, arising out of or relating to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the ClosingExcluded Liabilities;
(iv) Any litigationthe ownership, arbitration, investigation operation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any conduct of the RFG Family Entities Business prior to the ClosingEffective Time;
(Av) All Taxes of any of with respect to the RFG Family Entities for any taxable period ending on or services provided by the Companies prior to the Closing DateEffective Time, (B) all Taxes regardless of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities when such claim is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; andmade;
(vi) All payments and any claim for payment of fees and/or expenses of Frost Securities or any other Losses made broker or incurred by any RFG Family Entity after finder in connection with the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller origin, negotiation, execution or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA consummation of the obligations Transaction based upon any agreement between Frost Securities and any Selling Party or any alleged agreement between any other claimant and any Selling Party or any of LIG Partnershis, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.her or its Affiliates; and
(vii) Any litigation, arbitration, investigation any (1) Taxes (other than Non-Income Taxes that were not due on or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing Date and subject which are specifically reflected as an accrued Tax liability in the Final Closing Date Balance Sheet, as finally determined pursuant to Section 1.3) imposed on the provisions Companies or the Business for any period (or portion of this Article 10, each Seller severally (and not jointlyany period) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to ending on or resulting from (a) any breach by before the Seller of the representations and warranties set forth in Article 4Closing Date, (b2) any unpaid Taxes imposed on the Buyer as a transferee of any Seller under Treasury Regulation Section 1.1502-6 6901 of the Code (or any comparable provision of state or local law or any substantive law available to impose transferee liability under Section 6901 of the Code), and (3) any sales or use, transfer or other similar Taxes imposed on, with respect to, or by reference to the Transaction. For purposes of any indemnification under this Section 8.2(a), in determining whether there has been a breach and the amount of any Loss that is the subject matter of a claim for indemnification hereunder, each representation and warranty shall be read without regard and without giving effect to any Knowledge standard or qualification (or any similar provision of state, local words or foreign law), phrases) contained in such representation or warranty (as a transferee if such standard or successor, by contract, or otherwise qualification were deleted from such representation and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiarieswarranty).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 2 contracts
Samples: Equity Purchase Agreement, Equity Purchase Agreement (Dolan Media CO)
Indemnification by the Sellers. (a) From and after the Closing Date, subject to the provisions of this Article 10Closing, the Securityholders Sellers, jointly and severally, except as provided in Section 10.2(b), shall indemnify, defend and hold harmless Calavo and indemnify each of the Purchaser Indemnitees from and against, and shall compensate and reimburse each of the Purchaser Indemnitees for, any Damages that are directly or indirectly suffered or incurred by any of the Purchaser Indemnitees or to which any of the 41. Purchaser Indemnitees may otherwise become subject at any time (including Surviving RFG and their Subsidiariesregardless of whether or not such Damages relate to any third-party claim) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) that arise directly or indirectly from and against any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out a direct or indirect result of, relating to or resulting fromare directly or indirectly connected with:
(i) Any any breach or inaccuracy of any representation of (A) any of the representations or warranty warranties made by the Sellers in this Agreement as of the date of this Agreement; or (B) any of the representations or warranties made by the Sellers in this Agreement (including without giving effect to any exhibitupdate to the Disclosure Schedule) as of the Closing Date as if made on and as of the Closing Date, schedule and any Proceeding relating directly or other agreement indirectly to any such breach or document delivered pursuant to this Agreement), subject to Section 10.2(b)inaccuracy;
(ii) Any any breach of, or failure to perform, any agreement of any RFG Family Entity covenant or obligation of any Seller that is of the Sellers contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as any Liability of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to Parent Entities, other than the ClosingDesignated Contractual Obligations;
(iv) Any litigationany Liability under the WARN Act including any Liability for any losses, arbitrationpenalties or backpay relating to any failure to give adequate notice of a "mass layoff" or "plant closing" under the WARN Act, investigation if the "employment loss" contributing to such "mass layoff" or other claim "plant closing"
(i) occurs immediately prior to, or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or within 60 days after the Closing, that is based upon or arises out Closing Date and (ii) consists of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes "employment loss" for employees of any of the RFG Family Entities Parent Entities, other than the Continuing Employees;
(v) any Liability with respect to the termination of employment of any of the Separating Employees outside the United States, including any Liability for any taxable period ending losses, payments or penalties relating to any violation of any Legal Requirement or any breach of Contract, despite any application of any Business Transfer Laws and any required transfer of employment of any Separating Employee outside the United States to the Purchaser pursuant to any Business Transfer Laws;
(vi) any noncompliance with any "bulk tax sales", "bulk tax transfer" or similar Tax laws of any state or fraudulent transfer or fraudulent conveyance laws in respect of any of the Transactions;
(vii) the failure of Parent to have terminated on or prior to the Closing DateDate that certain International Software Reseller Agreement, dated November 20, 2001, as amended on October 11, 2002, by and between Parent and Penta Systems Technology, Inc. (Band the Sellers hereby represent and warrant that the only territory covered by such agreement is the Republic of South Korea); or
(viii) all Taxes of any member of an affiliatedProceeding relating directly or indirectly to any breach, combined alleged breach, Liability or unitary group of which any matter of the RFG Family Entities is or was a member on or prior type referred to the Closing Datein clause "(ii)," "(iii)," "(iv)," "(v)", including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
"(vi) All payments and other Losses made )" or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10."
Appears in 2 contracts
Samples: Asset Purchase Agreement (Inktomi Corp), Asset Purchase Agreement (Verity Inc \De\)
Indemnification by the Sellers. (a) From and after the Closing Date, subject Subject to the provisions of limitations in this Article 10Section 11, the Securityholders Sellers jointly and severally, except as provided in Section 10.2(b), shall severally agree to indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) from and against any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting from:
(i) Any breach of any representation or warranty made by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns Buyer Group from and against any and all Losses that to the extent such Parties may incur Losses are based upon, arising arise out ofof or are related to:
(i) a breach of any representation or warranty (after giving effect to any materiality or Material Adverse Effect qualification) of the Sellers or the Companies contained in this Agreement; provided that, relating for purposes of this Section 11.2(b), if there is a breach of any representation or warranty (after giving effect to any materiality or resulting from Material Adverse Effect qualification) then the determination of the Losses upon such breach of any representation or warranty shall be made without regard to any materiality or Material Adverse Effect qualification contained therein; and provided further that, for purposes of the foregoing proviso only, any Material Adverse Effect qualification contained in any representation or warranty in Section 4.8(b), Section 4.8(c) and Section 4.17(e) only shall not be given effect, but instead such representation or warranty shall instead be interpreted as though it contained a materiality qualification;
(aii) any breach failure of the Sellers or the Companies to perform or comply with any of the covenants, agreements or obligations of the Sellers or the Companies contained in this Agreement or in any Related Agreement (other than Section 7.15(b), which is covered by clause (vi) below);
(iii) any Excluded Liabilities;
(iv) any Liability to any broker or finder retained or alleged to have been retained by the Seller Companies (except as reflected as a Closing Date Current Liability in the final determination of Closing Date Working Capital) or either of the representations and warranties Sellers in connection with this Agreement or the Transactions;
(v) any Indemnified Tax Liability; or
(vi) the failure to obtain a favorable determination letter from the Puerto Rico Treasury for La Union Insular de Trabajadores Industriales y Construcciones Electricas Inc. 401(k) Plan or to successfully complete prior to the Closing Date any of the other actions set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries7.15(b).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 2 contracts
Samples: Interest Acquisition Agreement (Arahova Communications Inc), Interest Acquisition Agreement (Adelphia Communications Corp)
Indemnification by the Sellers. (a) From and after the Closing Date, subject Subject to the provisions of limitations set forth in this Article 107, the Securityholders Sellers, jointly and severally, except as provided in Section 10.2(b), shall indemnify, defend will indemnify and hold harmless Calavo (including Surviving RFG and their Subsidiaries) the Purchasers, each of the Purchasers’ Affiliates, each of the Acquired Companies and each of their officers, respective directors, shareholders, membersofficers, employees, other Representativesagents, Affiliatesconsultants, successors advisors, representatives and permitted assigns equity holders (excluding collectively, the Sellers to the extent they serve in any such capacities“Purchaser Indemnified Parties”) from and against any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating Losses incurred or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting from:
(i) Any breach of any representation or warranty made suffered by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Purchaser Indemnified Parties may incur based upon, arising out of, relating to or resulting from any of the following:
(a) any inaccuracy in or breach of any representation or warranty of the Sellers contained in this Agreement or in any certificate delivered by the Seller of Sellers in connection with this Agreement; [***] = Confidential Treatment requested for redacted portion; redacted portion has been filed separately with the representations and warranties set forth in Article 4, Commission.
(b) any unpaid Taxes breach or default of any Seller under Treasury Regulation Section 1.1502-6 (covenant or any similar provision agreement of state, local or foreign law), as a transferee or successor, by contract, or otherwise and the Sellers contained in this Agreement;
(c) any breach by matter disclosed in (i) Section 3.9(k) of the Seller Disclosure Schedule (including any claim arising from an alleged breach of any covenants applicable the Letter Agreement, dated March 8, 2006 referred to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(atherein) or 10.2(b(ii) by reason Section 3.20 of such other Seller’s position the Seller Disclosure Schedule or any Covered Claims (as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiariesdefined in Schedule G).;
(d) Notwithstanding anything Subject to Article 6 of this Agreement, (i) any Taxes of any Acquired Company with respect to taxable periods ending on or before the Closing Date (in excess of the amount of Taxes reflected as Liabilities in the calculation of [***] (as finally determined in accordance with Section 10.5(a2.4)), (ii) with respect to taxable periods beginning before the contraryClosing Date and ending after the Closing Date, Xx. X. Catchotany Taxes of any Acquired Company which are allocable, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliatespursuant to Section 6.3, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations portion of Liberty Fresh Foods, LLC, if and such period ending on the Closing Date (to the extent that Liberty Fresh Foodsin excess of the amount of Taxes reflected as Liabilities in the calculation of [***] (as finally determined in accordance with Section 2.4)), LLC defaults (iii) any Taxes with respect to prior taxable periods listed in clauses (i) and (ii) hereof relating to any member of an affiliated group with which any Acquired Company has filed a Tax Return on its obligations pursuant a consolidated, combined or unitary basis; and (iv) any Loss suffered by Purchaser Indemnified Parties with respect to their recognition of any subpart F income (as defined in section 952 of the Code) accrued by the Acquired Companies during the period (or portions thereof) ending on or prior to the Closing Date;
(e) any Liability (whether or not disclosed on any Schedule to this Article 10Agreement or otherwise disclosed to or known by the Purchasers or any of their respective representatives or agents) of or relating to any Acquired Company or any of their respective Affiliates:
(i) arising out of or related to the simultaneous employment prior to the Closing Date by more than one Acquired Company (or any of their Affiliates) of any current or former employee of any Acquired Company; or
(ii) arising out of claims of infringement or misappropriation of Intellectual Property rights of any current or former employee or contractor (or any of its current or former agents or employees) of any of the Acquired Companies with respect to computer software and related functional specifications, databases, procedures manuals and design documentation, in each case that were created prior to the Closing Date by (A) any such current or former employee in the scope of his or her employment or (B) any current or former contractor (or any of its current or former agents or employees) in the scope of its (or their) engagement with any of the Acquired Companies;
(f) any claim (i) by any Affiliate of any Seller (or any shareholder of any such Affiliate), that is not an Acquired Company, arising out of acts or occurrences prior to the Closing or as a result of the consummation of the transactions contemplated by this Agreement at Closing; or (ii) relating to the operation by any Affiliate of any Seller (or any shareholder of any such Affiliate), that is not an Acquired Company, of any business other than the Business, at any time (whether before or after Closing); and
(g) any Proceedings, demands or assessments incidental to any of the matters set forth in clauses (a) through (f) above.
Appears in 1 contract
Indemnification by the Sellers. (a) From and after the Closing Date, subject to the provisions of this Article 10, the Securityholders jointly Each Seller individually and severally, except as provided in Section 10.2(b), shall agrees to indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) the Buyer and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors its directors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) officers harmless from and against any and all lossesloss, damagesliability, obligationsdamage, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, expenses (including interest, penalties and reasonable attorneys’ ' fees) (collectively, accountants’ fees "Losses") that the Buyer or any of its affiliates may incur or become subject to arising out of or due to any (i) inaccuracy of any representation or the breach of any warranty or covenant of the Sellers contained in this Agreement or (ii) Losses relating to the Securities Act, the Exchange Act or otherwise, insofar as such Losses (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement or any amendment or supplement thereto, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statement therein not misleading, and which was included (or failed to be included) in the Registration Statement or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Buyer by such Seller specifically stating that it is for use in the preparation thereof or (iii) any violation by any Seller of any rule or regulation promulgated under the Securities Act, Exchange Act or any states securities law applicable to any such Seller and relating to action or inaction required of the Seller in connection with any such registration. In the event that any Seller is required to pay the Buyer or any of its officers or directors under this Section 10.1, each such Seller will reimburse such person for any legal or any other costs and expenses for reasonably incurred by them in connection with investigating or defending any Actionssuch loss, claims and proceedings (all claim, liability, action or proceeding. Notwithstanding the above, any claim by the Buyer of such Seller for indemnification for Losses arising from a breach of representation, warranty or covenant of Millennium or such Seller shall be limited to the lesser of: such Seller's proportionate share of the foregoing being collectively referred to herein Losses calculated as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting from:
(i) Any breach of any representation or warranty made by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as proportion of the Closing, any breaches or defaults (or events giving rise to Datatec Common Stock received by such breaches or defaults) by any of the RFG Family Entities that occurred Seller prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out payment of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Dateclaim; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 1 contract
Indemnification by the Sellers. Subject to the limitations set forth in this Article IX (a) From including the provisions of Section 9.1), from and after the Closing DateClosing, subject to each of the provisions of this Article 10Sellers (together with their respective successors, the Securityholders jointly assigns and severallyheirs, each, a “Seller Indemnitor”) will, on a several, but not joint, basis (based on such Seller Indemnitor’s Indemnity Pro Rata Share, except as otherwise expressly provided in Section 10.2(b9.2(c), shall Section 9.2(h) and Section 9.4(e)), indemnify, defend and hold harmless Calavo (including Surviving RFG Parent and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns assigns, and the officers, employees, directors, managers, members, partners and stockholders of Parent and their Affiliates and their heirs and personal representatives (excluding collectively, the Sellers to the extent they serve in any such capacities“Parent Indemnitees”) from and against against, and will pay to the Parent Indemnitees the amount of, any and all losses, Liabilities, claims, damages, obligationspenalties, liabilities and other costs and expensesfines, including, without limitation, settlement costsinterest, judgments, interestawards, penalties and settlements, costs, fees (including reasonable investigation fees), expenses (including reasonable attorneys’ fees, accountants’ fees and other reasonable professional and expert fees), court costs and expenses for investigating or defending any Actionsdisbursements (collectively, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) ), whether or not arising from claims, demands, assertions of liability, assessments, Taxes or Actions, that such parties may incur based uponare paid, sustained, suffered or actually incurred by any of the Parent Indemnitees following the Closing as a result of or arising out of, relating to or resulting from:
(ia) Any any breach of any representation or warranty made by inaccuracy in the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement representations and warranties of any RFG Family Entity or any Seller that is the Company contained in this Agreement (including any exhibit, schedule or other agreement or document the Schedules and exhibits attached hereto and the certificates delivered pursuant to hereto) or any Ancillary Agreement, as of the Agreement Date or as of the Closing Date (except in the case of representations and warranties which by their terms speak only as of a specific date or dates, in which case as of such specified date or dates); provided, that for the purposes of this Agreementclause (a), subject qualifications as to Section 10.2(b)material, materiality or Material Adverse Effect contained in such representations and warranties shall be given effect for determining whether a breach or inaccuracy of such representations and warranties has occurred, but shall not be given effect for purposes of calculating any Losses relating thereto;
(iiib) With respect any breach of the covenants or agreements of the Company arising prior to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the ClosingClosing contained in this Agreement (including the Schedules and exhibits attached hereto and the certificates delivered pursuant hereto) or any Ancillary Agreement;
(c) solely with respect to such Seller, (i) any breach of or inaccuracy in the Seller Representations of such Seller; provided, that for the purposes of this clause (c), qualifications as to material, materiality or Material Adverse Effect contained in such Seller Representations shall be given effect for determining whether a breach or inaccuracy of such Seller Representations has occurred, but shall not be given effect for purposes of calculating any Losses relating thereto, and/or (ii) any breach of the covenants or agreements of such Seller, in each case of clauses (i) and (ii) contained in the Joinder Agreement or any other Ancillary Agreement, as of the Closing Date, and/or (iii) any Seller Fraud committed by such Seller. For the avoidance of doubt, no Seller shall have any obligation to indemnify, defend and hold harmless any Parent Indemnitee in connection with any breach of or inaccuracy in the Seller Representations of any other Seller, any breaches breach of the covenants or defaults (agreements of any other Seller, or events giving rise to such breaches or defaults) any Seller Fraud committed by any other Seller;
(d) any Company Fraud occurring as of the RFG Family Entities that occurred or prior to the Closing;
(ive) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out failure of any actions or omissions made or taken by any Seller or any item set forth in the Spreadsheet to be accurate, true and correct in all respects as of the RFG Family Entities prior to the Closing;
(Af) All Taxes (i) any claim or Action by any Person that was a holder prior to the Effective Time of shares of Capital Stock or Company Options or of any rights granted by the Company to acquire Capital Stock or Company Options or other securities of the Company or any of its Subsidiaries that (x) relates to the Merger or any of the RFG Family Entities for other transactions contemplated by this Agreement, or (y) arises out of facts or circumstances existing prior to the Closing, including (I) appraisal rights or dissenters’ rights actions, (II) claims in connection with the documents delivered in accordance with Section 3.2, any taxable period ending on amendment or supplement thereto or any subsequent notices related thereto delivered to Sellers before the Effective Time, (III) claims arising out of the authorization, execution and delivery of this Agreement by the Company, the performance by the Company of its obligations hereunder or the consummation by the Company of the transactions contemplated hereby, and (IV) claims alleging violations of fiduciary duty by the officers or directors of the Company, and (ii) any amount payable in respect of claims of appraisal rights or dissenters’ rights actions with respect to shares of Capital Stock in connection with the Merger;
(g) any Company Debt or Selling Expenses outstanding as of immediately prior to the Closing that is not satisfied by the Company at or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any otherwise taken into account in the calculation of the RFG Family Entities is or was a member on or prior Adjusted Merger Consideration as finally determined pursuant to Section 2.11;
(h) solely with respect to the Closing DateFounder Stockholder and Founders, any Liability resulting or arising from, or in connection with, the Founder Shares, including pursuant any claims of ownership of the Founder Shares, any claims for consideration hereunder relating to Treasury Regulation Section 1.1502-6 the Founder Shares or any analogous claims by any Person relating to any representations, warranties, covenants or similar stateagreements regarding the ownership, local right to control, right to encumber or foreign Law; and otherwise relating to the Founder Shares;
(Ci) any and all Taxes of Pre-Closing Taxes, including any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee sales or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Dateuse Taxes; and
(vij) All payments and other Losses made any Liability resulting from or incurred in connection with the classification by the Company or any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of its Subsidiaries of any obligations of any Seller current or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA former employee of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction Company or any actions of its Subsidiaries as an “independent contractor” or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10a “consultant” for Tax, each Seller severally (and not jointly) shall indemnifybenefits, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officerswage, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (labor or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) other purposes under any breach by the Seller of any covenants applicable to such Seller after the ClosingLaw.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 1 contract
Indemnification by the Sellers. (a) From and after the Closing DateEach Seller, subject to the provisions of this Article 10, the Securityholders jointly and severally, except as provided in Section 10.2(b), severally shall indemnify, defend indemnify and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) Purchasers from and against any and against, without duplication, all costs, fees, liabilities, losses, Taxes, charges, claims, expenses and damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ legal fees and other costs and expenses for investigating (both those incurred in connection with the defense or defending any Actions, claims and proceedings (all prosecution of the foregoing being indemnifiable claim and those incurred in connection with the enforcement of this provision) and costs of investigation, imposed on or incurred by the Purchasers or their agents or Affiliates, or any of their respective subsidiaries or Affiliates, or any of their respective officers, directors or employees, (collectively referred to herein "Purchaser Losses") as “Losses”) that such parties may incur based upon, arising out a result of, relating to or resulting from:
(i) Any any breach of any representation or warranty made by of the Sellers contained in this Agreement (including or in any exhibitagreement, schedule document, instrument, certification, Schedule, Exhibit or other agreement or document writing delivered pursuant to this Agreement), subject to Section 10.2(b)hereto or in connection herewith;
(ii) Any any breach of, of any covenant or failure to perform, any agreement of any RFG Family Entity or any Seller that is the Sellers contained in this Agreement (including any exhibitincluding, schedule or other agreement or document delivered but not limited to, the covenant of the Sellers pursuant to this AgreementSection 2(i)(ii) (Agreement Termination Covenant)) or in any agreement, subject to Section 10.2(b)document, instrument, certification, Schedule, Exhibit or writing delivered hereto or in connection herewith;
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the ClosingRetained Liabilities;
(iv) Any litigationthe commencement or threatened commencement of any proceeding, arbitrationsuit or action against the Sellers or Purchasers or any Affiliate thereof, investigation or other claim any director, officer or legal proceeding (includingemployee of any of them, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises arising out of any actions taken, or omissions made omitted to be taken, or taken by any Seller or any state of the RFG Family Entities facts existing, prior to the Closing;, which, if determined adversely thereto (regardless of the actual determination thereof) would result in a Purchaser Loss which is indemnifiable under the provisions of this Section 8(a) (any such pending or threatened suit or action being a "Purchaser Covered Action"); and/or
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (Cv) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee actions, suits, proceedings, claims or successor, by Contract or pursuant demands incident to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation foregoing or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closingindemnifications.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 1 contract
Samples: Asset Purchase Agreement (Take Two Interactive Software Inc)
Indemnification by the Sellers. (a) From and after the Closing Date, subject Subject to the provisions of this Article 10VII, the Securityholders jointly and severally, except as provided in Section 10.2(b), each Seller shall severally indemnify, defend and hold harmless Calavo (including Surviving RFG the Buyer, any parent, subsidiary or affiliate of the Buyer, and their Subsidiaries) and each any director, officer, employee, agent or advisor of any of them, or any of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, respective successors and permitted or assigns (excluding the Sellers to the extent they serve in any such capacities) a "Buyer Indemnified Party"), from and against any and all lossesLosses asserted against, damagesresulting to, obligationsimposed upon or incurred by any Buyer Indemnified Party, liabilities and other costs and expensesdirectly or indirectly, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating by reason of or defending resulting from the breach of or any Actions, claims and proceedings (all inaccuracy in any of the foregoing being collectively referred representations and warranties of such Seller contained in or made pursuant to herein as “Losses”Article II hereof, or any facts or circumstances constituting such breach or inaccuracy.
(b) that Subject to the provisions of this Article VII, each Management Seller shall jointly and severally indemnify, defend and hold harmless each Buyer Indemnified Party from and against any and all Losses asserted against, resulting to, imposed upon or incurred by such parties may incur based uponBuyer Indemnified Party, arising out ofdirectly or indirectly, relating to by reason of or resulting from:
(i) Any the breach of or any representation or warranty made by inaccuracy in any of the representations and warranties of the Sellers or CCI contained in or made pursuant to any Section of this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreementthan a Section in Article II hereof), subject to Section 10.2(b)or any facts or circumstances constituting such breach or inaccuracy;
(ii) Any the breach of, or failure to perform, nonperformance of any covenant or agreement of any RFG Family Entity the Sellers or any Seller that is CCI contained in this Agreement (including any exhibit, schedule or other agreement or document delivered made pursuant to this Agreement), subject to Section 10.2(b)Agreement or any facts or circumstances constituting such breach or nonperformance;
(iii) With respect any liabilities relating to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the ClosingExcluded Assets;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding any unrecorded expenses and liabilities (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out net of any actions or omissions made or taken by any Seller or any unrecorded income and Current Assets) of the RFG Family Entities CCI relating to occurrences prior to the ClosingEffective Time;
(Av) All Taxes of any of the RFG Family Entities litigation or legal claims against CCI or for any taxable period ending on which CCI is or may be liable relating to occurrences prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing DateEffective Time; and
(vi) All payments all liability and other Losses made remediation costs imposed by Environmental Laws or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date Governmental Authority in respect of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the TrustEnvironmental Laws;
(bc) From and after the Closing and subject Subject to the provisions of this Article 10VII, each Seller (other than the Management Sellers and Bertxxx Xxxxxx) xxd Bertxxx Fishxx (xxly with respect to clauses (ii) and (v) below), shall severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns Buyer Indemnified Party from and against any and all Losses that asserted against, resulting to, imposed upon or incurred by such Parties may incur based uponBuyer Indemnified Party, arising out ofdirectly or indirectly, relating to by reason of or resulting from from:
(ai) the breach of or any breach by the Seller inaccuracy in any of the representations and warranties set forth of such Seller contained in or made pursuant to any Section of this Agreement (other than a Section in Article 4II hereof), or any facts or circumstances constituting such breach or inaccuracy;
(bii) any unpaid Taxes the breach or nonperformance of any Seller under Treasury Regulation Section 1.1502-6 (covenant or any similar provision agreement of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) contained in or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations made pursuant to this Article 10Agreement or any facts or circumstances constituting such breach or nonperformance;
(iii) its Pro Rata portion of any liabilities relating to the Excluded Assets;
(iv) its Pro Rata portion of any unrecorded expenses and liabilities (net of any unrecorded income and Current Assets) of CCI relating to occurrences prior to the Effective Time;
(v) its Pro Rata portion of any litigation or legal claims against CCI or for which CCI is or may be liable relating to occurrences prior to the Effective Time; and
(vi) its Pro Rata portion of all liabilities and remediation costs imposed by Environmental Laws or by any Governmental Authority in respect of Environmental Laws.
Appears in 1 contract
Indemnification by the Sellers. (a) From and after Each of the Closing DateSellers hereby agrees, subject to the provisions of this Article 10, the Securityholders jointly and severally, except as provided in Section 10.2(b), shall indemnify, defend to indemnify and hold harmless Calavo (including Surviving RFG and their Subsidiarieswithout duplication) and each of their officersthe Buyer Indemnified Parties against any Losses described below that such Buyer Indemnified Parties shall actually incur, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) from and against any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based uponLosses (or written or formally notified claims, arising out ofactions, relating to suits or resulting fromproceedings in respect thereof and any appeals therefrom (“Proceedings”)) are:
(i) Any Recoverable Losses which arise out of (1) any breach of any representation or warranty made by the Sellers in this Agreement (including other than Section 3.8, for which the remedies are specified in Section 6.1) or (2) any exhibit, schedule or other agreement or document delivered pursuant of the items disclosed in any of the Schedules to this Agreement)Agreement and/or the Asset Purchase Agreement (as applicable) so long as such losses described in this clause (2) arise from or relate to (x) the ownership or operation of any of the companies prior to the closing, subject or (y) any actions or omissions prior to Section 10.2(b);the closing and related to such disclosed items.
(ii) Any breach of, or Recoverable Losses which arise out of any failure to perform, perform any agreement of any RFG Family Entity or any Seller that is contained in this Agreement covenant made herein by the Sellers (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to than Section 10.2(b6.1);
(iii) With respect Recoverable Losses which arise out of any breach of any representation or warranty or failure to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closingperform any covenant, any breaches or defaults (or events giving rise to such breaches or defaults) in each case made by any of party other than the RFG Family Entities that occurred prior to Buyer in the ClosingAsset Purchase Agreement and/or the Transition Services Agreement;
(iv) Any litigation, arbitration, investigation or other Losses which arise out of any claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed asserted on a schedule to this Agreement), whether brought before or after the date hereof by the Persons listed on Schedule 3.14(h).
(v) following the Closing, that is based upon or arises Losses which arise out of (1) any actions or omissions made or taken claim by a third party asserted against any Seller or any of the RFG Family Entities prior Buyer Indemnified Party relating to the Closing;
(A) All Taxes ownership or operation of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity Company prior to the Closing Date (irrespective of whether such claim or potential liability was previously disclosed to the Buyer on the Schedules hereto or anywhere else) or (2) any items disclosed in any of the Schedules to this Agreement and/or the Asset Purchase Agreement so long as such Losses described in this clause (2) arise from or relate to (x) the ownership or operation of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed Companies or the Acquired Assets (as applicable) prior to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or (y) any actions or omissions made or taken by the Trust;
(b) From and after prior to the Closing and subject related to the provisions of this Article 10, each Seller severally such disclosed item; or
(and not jointlyvi) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising which arise out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Sellers’ liability to Buyer for Taxes that are the obligation of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), the Sellers as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything provided in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 106.1.
Appears in 1 contract
Indemnification by the Sellers. (a) From Subject to Sections 9.7 and after the Closing Date, subject to the provisions of this Article 109.8, the Securityholders ------------------------------ ------------ --- Sellers jointly and severally, except as provided in Section 10.2(b), shall severally agree to indemnify, defend and hold save the CenterPoint Indemnified Parties (hereinafter defined), forever harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) from and against against, and to promptly pay to a CenterPoint Indemnified Party or reimburse a CenterPoint Indemnified Party for, any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating Losses (hereinafter defined) sustained or defending incurred by any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based uponCenterPoint Indemnified Party resulting from, arising out of, relating to in connection with or resulting fromotherwise by virtue of:
(ia) Any any misrepresentation or breach of any a representation or warranty made in Article V herein or in any certificate, schedule, document, exhibit --------- or other instrument delivered hereunder by any Partner or Seller or any action, demand or claim by any third party against or affecting any CenterPoint Indemnified Party which, if successful, would give rise to a breach of any such representation or warranty, except that the obligation of the Sellers to indemnify, defend and save harmless for any misrepresentation or breach of representation or warranty made in this Agreement (including Section ------- 5.1 hereof or in any exhibitcertificate, schedule schedule, document, exhibit or other agreement --- instrument delivered in respect thereof shall not be joint and several, but such obligation shall be several only and limited to the several Seller(s) making such misrepresentation or document delivered pursuant to this Agreement), subject to Section 10.2(b)breach;
(b) any failure by HCVT, any Seller or any Partner to observe or perform any of their covenants and agreements set forth herein related to the period prior to the Closing except that the obligation of the Sellers to indemnify, defend and save harmless for any failure to observe or perform any covenant or agreement shall not be joint and several, but such obligation shall be several only and limited to the several Seller(s) failing to observe or perform such covenant or agreement, except that the obligations of the Seller(s) to indemnify, defend and save harmless for any breach of a covenant or agreement by a Seller or Partner shall not be joint and several, but such obligation shall be several only and limited to the several Seller(s) committing such breach;
(c) any liability under the 1933 Act, the Securities Exchange Act of 1934, as amended (the "1934 ACT") or other federal or state law or regulation, at common law or otherwise, arising out of or based upon any untrue statement or alleged untrue statement of a material fact relating to HCVT or the Company contained in any preliminary prospectus relating to the IPO, the Registration Statements or any proxy statement or prospectus forming a part thereof, or any amendment thereof or supplement thereto, or arising out of or based upon any omission to state therein a material fact relating to HCVT or the Company required to be stated therein or necessary to make the statements therein not misleading, and not provided to CenterPoint or its counsel by HCVT or the Company; provided, however, that -------- ------- such indemnity shall not inure to the benefit of any CenterPoint Indemnified Party to the extent that such untrue statement (or alleged untrue statement) was made in, or omission (or alleged omission) occurred in, any preliminary prospectus and (i) HCVT or the Company provided, in writing, corrected information to CenterPoint or its counsel for inclusion in the final prospectus prior to distributing such prospectus, and such information was not so included, or (ii) Any breach ofCenterPoint did not provide HCVT and its counsel with the information required to be provided pursuant to Section 8.2.2, and such information is the basis for the untrue statement ------------- or failure omission (or alleged untrue statement or omission) giving rise to perform, any agreement of any RFG Family Entity the liability under this Section 9.1(c); or any Seller that is --------------
(d) notwithstanding anything contained in this Agreement to the contrary, (including i) any exhibitarrangements made by or on behalf of the Sellers, schedule the Partners, HCVT, or the Company in connection with the Merger or the transactions contemplated by this Agreement with respect to brokerage, finders and other agreement fees or document delivered pursuant commissions, (ii) disallowance of any tax deduction to this Agreement)CenterPoint, subject any Partner or the Company with respect to Section 10.2(b);
any item listed on Schedule 2.5 and considered in determining Net Working ------------ Capital, and (iii) With respect to any Loss relating to, resulting from, arising out of or otherwise by virtue of any matter which is or should be listed on Schedule -------- 4.10, 5.1.9 or 7.1.4 hereto. ---- ----- ----- As used in this Agreement, the agreements to which Surviving RFG or "CENTERPOINT INDEMNIFIED PARTIES" shall mean CenterPoint, its Subsidiaries is and Affiliates, the Founding Companies other than the Company (the "OTHER FOUNDING COMPANIES"), and their respective officers, directors, employees, agents, employee plans and plan fiduciaries, plan administrators or other Person dealing with any such plans; provided, however, -------- ------- that the Other Founding Companies, and each of their respective officers, directors, employees, agents, employee plans and plan fiduciaries, plan administrators or other Persons dealing with any such plans, shall cease to be a party or is otherwise bound "CENTERPOINT INDEMNIFIED PARTY" for all purposes hereunder as of the Closing, any breaches or defaults and thereafter such Persons shall have no further rights and remedies under this Article IX (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior except to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on extent a schedule to this Agreement), whether brought before or after the Closing, that Person is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholderemployee or ---------- agent of CenterPoint as a result of the consummation of the transactions contemplated under the Other Agreements);provided, member or employee further that the Subsidiaries -------- ------- of Calavo (including Surviving RFG CenterPoint shall include the Company, the Company Subsidiaries and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) the other Founding Companies from and after the Closing. Accordingly, for purposes of this Article ------- IX and subject to the contrarylimitations set forth in this Article IX, Xx. X. Catchotthe Other -- ---------- Founding Companies, Xx. X. Catchot and Xx. Xxxxxx (each of their respective officers, directors, employees, agents, employee plans and their Affiliatesplan fiduciaries, to the extent their Affiliates receive plan administrators or other Persons dealing with any payments from Liberty Fresh Foodssuch plans, LLC) agree shall be deemed to be jointly and severally liable for any obligations third party beneficiaries of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10Agreement.
Appears in 1 contract
Indemnification by the Sellers. (a) From and after the Closing Date, subject to the provisions of this Article 10Closing, the Securityholders jointly and severally, except as provided in Section 10.2(b), Sellers shall indemnify, defend defend, and hold harmless Calavo (including Surviving RFG and their the Purchaser, the Parent, the Transferred Subsidiaries) , and each of their officers, managers, directors, employees, members, shareholders, members, employees, other Representatives, Affiliates, successors representatives, successors, and permitted assigns (excluding collectively, the Sellers to “Purchaser Indemnified Parties”) from, against, and with respect to, and will compensate and reimburse the extent they serve in any such capacities) from and against Purchaser Indemnified Parties for, any and all losses, Liabilities, damages, obligationsclaims, liabilities and other costs and expenses, including, without limitation, settlement costs, judgmentscharges, interest, penalties and reasonable attorneys’ penalties, fees, accountants’ costs, and expenses (including reasonable and documented attorney’s and accountant’s fees and other costs and expenses for investigating reasonably incurred in investigating, preparing, defending against, or defending prosecuting any ActionsProceeding, claims and proceedings claim, or demand) (all collectively, “Damages”), of the foregoing being collectively referred any kind or character, regardless of whether or not such Damages relate to herein as “Losses”) that such parties may incur based uponany third party claim, incurred or suffered by any Purchaser Indemnified Party, directly or indirectly, arising out ofof or in any manner incident, relating to relating, or resulting fromattributable to:
(ia) Any breach of any inaccuracy in any representation or warranty made by of the Sellers contained in ARTICLE III of this Agreement (as qualified by reference to the Seller Disclosure Schedule; for the avoidance of doubt, the definitions used in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant will be applied to the representations and warranties contained in ARTICLE III of this Agreement), subject to Section 10.2(bAgreement where applicable);
(iib) Any any breach of, or failure to perform, any agreement of any RFG Family Entity or by any Seller that is contained in this Agreement (including to perform any exhibitcovenant, schedule obligation or other agreement or document delivered pursuant to be performed by it under this Agreement), subject to Section 10.2(b);
(iiic) With the Excluded Liabilities; and
(d) any of the following amounts (i) any Taxes of the Transferred Subsidiaries or with respect to the agreements Assets with respect to a Pre-Closing Tax Period (allocated, for a Straddle Period, in accordance with the methodology set forth in Section 1.4(a)(i)), (ii) any and all withholding Taxes imposed with respect to payment to the Sellers under Section 1.8 of this Agreement, (iii) any increase in a Tax liability of a Transferred Subsidiary resulting from such Transferred Subsidiary being liable for any Taxes for a Pre-Closing Tax Period of any Person (other than a Transferred Subsidiary) (1) which Surviving RFG is or its Subsidiaries is a party has ever been affiliated for Tax purposes with the Transferred Subsidiary or with whom the Transferred Subsidiary otherwise joins or has ever joined (or is otherwise bound as of the Closingor has ever been required to join) in filing any consolidated, any breaches combined, unitary or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigationaggregate Tax Return, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or in each case prior to the Closing Date, Date (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 (or any analogous or similar corresponding provision of state, local or foreign non-US Tax Law; and ) or (C2) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Lawotherwise by reason of an agreement, which Taxes relate to an event or transaction occurring on or entered into prior to the Closing Date; and
, (viiv) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date Taxes that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank Excluded Liabilities and EDF Resource Capital, Inc.; and
(viiv) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that penalties and interest imposed on any item addressed in clauses (i)-(iv) including without limitation any and all penalties and interest imposed for failure to properly report such Parties may incur based uponTaxes; except, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliateseach case, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC(x) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations paid pursuant to Section 6.13(a), (y) taken into account in the Purchase Price as finally determined in accordance with Section 1.9 or (z) such Tax is attributable to any action taken by Purchaser outside the ordinary course of business (not otherwise specifically contemplated by this Article 10Agreement) with respect to any of the Transferred Subsidiaries or the Assets after the Closing on the Closing Date.
Appears in 1 contract
Indemnification by the Sellers. (a) From and after the Closing DateThe Sellers, subject to the provisions of this Article 10, the Securityholders jointly and severally, except as provided in Section 10.2(b), shall indemnify, defend will indemnify and hold harmless Calavo (including Surviving RFG Buyer and their Subsidiaries) its Affiliates and each any of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns respective Representatives (excluding the Sellers to the extent they serve in any such capacities) from and against any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as the “LossesBuyer Indemnified Parties”) that such parties may incur based upon), and will reimburse the Buyer Indemnified Parties for any Damages arising out of, relating to from or resulting fromin connection with:
(ia) Any breach any Breach of any representation or warranty made by the Sellers in (i) this Agreement Agreement, (including ii) the Disclosure Schedules, (iii) any exhibitAncillary Agreements, schedule (iv) any transfer instrument or (v) any other agreement certificate, document, writing or document instrument delivered by the Sellers pursuant to this Agreement), subject to Section 10.2(b);
(iib) Any breach of, any Breach of any covenant or failure to performobligation of the Sellers in this Agreement, any agreement of Ancillary Agreement or in any RFG Family Entity other certificate, document, writing or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document instrument delivered by the Sellers pursuant to this Agreement), subject to Section 10.2(b);
(iiic) With respect any Liability arising out of the ownership or operation of the Purchased Assets or the Business prior to the agreements Effective Time other than the Assumed Liabilities; provided, however, the Sellers’ indemnification obligation for any Liabilities that arise as a result of any Dealer act or omission related to which Surviving RFG a Vehicle Contract or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities Dealer Agreement that occurred prior to the Closingapplicable Acquisition Date shall be subject to Section 10.4(d);
(ivd) Any litigation, arbitration, investigation any act or other claim or legal proceeding (including, without limitationomission by the Sellers, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller their Affiliates or any of their delegees, agents or assigns (including any of their respective employees) in connection with the RFG Family Entities prior to the Closing;
(A) All Taxes servicing, billing, processing, recovery or collection of any of the RFG Family Entities for any taxable period ending on or Vehicle Contract occurring prior to the Closing Date;
(e) subject to Section 2.3(j), (B) all Taxes of any member of an affiliatedact or omission by the Sellers with respect to the management, combined accounting or unitary group of which any administration of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or Dealer Reserves prior to the Closing Date; andor
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (af) any breach by Excluded Liabilities. Notwithstanding the Seller of the representations and warranties set forth in Article 4foregoing, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (no Buyer Indemnified Party shall be indemnified or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, held harmless for Damages to the extent their Affiliates receive such Damages resulted, in whole or in part, directly or indirectly, from any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for action or omission by any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10Buyer Indemnified Party.
Appears in 1 contract
Indemnification by the Sellers. (a) From and after the Closing DateClosing, subject to each Seller, severally and not jointly, in accordance with such Seller’s Pro Rata Share, shall save, defend, indemnify and hold harmless the provisions Buyer and its Affiliates (including the Company) and the respective Representatives, successors and assigns of this Article 10each of the foregoing (the “Buyer Indemnified Parties”) from and against, and shall reimburse each of the Securityholders jointly and severallyforegoing for, except as provided in Section 10.2(b)otherwise set forth herein, shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) from and against any and all losses, damages, obligationsliabilities, liabilities and other costs and expensesdeficiencies, includingclaims, without limitationinterest, settlement costsawards, judgments, interestpenalties, penalties costs and expenses (including reasonable attorneys’ fees, accountants’ fees costs and other costs and out-of-pocket expenses for investigating incurred in investigating, preparing or defending the foregoing) (hereinafter collectively, “Losses”), incurred, sustained or suffered by any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upona result of, arising out of, of or relating to or resulting fromto:
(i) Any any breach of any representation or warranty made by the Sellers Company contained in this Agreement (including or any exhibitschedule, schedule certificate or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b)hereto or in connection with the transactions contemplated hereby or thereby;
(ii) Any any breach of, of any covenant or failure to perform, any agreement of any RFG Family Entity or any Seller that is the Company contained in this Agreement (including any exhibit, schedule that by its terms is to be performed by the Company at or other agreement or document delivered pursuant prior to this Agreement), subject to Section 10.2(b);the Closing; and
(iii) With respect any (A) Transaction Expenses charged to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of Buyer, the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller Company or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Datetheir Affiliates, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of Indebtedness incurred by the RFG Family Entities is or was a member on or Company prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than Compensation Costs, in each case that shall not have been reflected in the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Final Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;Statement.
(b) From and after the Closing and subject to the provisions of this Article 10Closing, each Seller severally (shall be liable for, and not jointly) shall indemnifysolely save, defend defend, indemnify and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns the Buyer Indemnified Parties from and against any and all Losses that such Parties may incur based uponasserted against, incurred, sustained or suffered by any of the foregoing as a result of, arising out ofof or relating to, relating to or resulting from and shall compensate and reimburse each of the foregoing for:
(ai) any breach of any representation or warranty made by the such Seller of the representations and warranties set forth in Article 4, III; and
(b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (cii) any breach by the Seller of any covenants applicable to covenant or agreement of such Seller after the Closingcontained in this Agreement.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 1 contract
Samples: Securities Purchase Agreement (Patterson Uti Energy Inc)
Indemnification by the Sellers. (a) From and after the Closing DateThe Sellers, subject to the provisions of this Article 10, the Securityholders jointly and severally, except as provided in Section 10.2(b), shall indemnify, defend and hold harmless Calavo and defend (including Surviving RFG and their Subsidiariespay or reimburse) Buyer, its successors and each of their assigns, and its officers, directors, shareholders, members, employees, other Representativesaffiliates and agents ("Buyer's Indemnified Persons") from, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) from for and against any and all lossesloss, damagesdamage, obligationsliability, liabilities and other costs and expenses, including, deficiency or claim (including without limitation, settlement costs, judgments, interest, penalties and limitation reasonable attorneys’ fees, accountants’ ' fees and other costs and expenses for investigating incident to any suit, action, dispute, investigation or defending other proceeding or in asserting any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”their respective rights) that such parties may incur based upon, arising out of, relating to of or resulting from:from (and will pay Buyer's Indemnified Persons in accordance with the provisions of this ARTICLE XII, the full amount of any sum which Buyer's Indemnified Persons become obligated on account of):
(ia) Any breach of any representation or warranty made by the representations and warranties of the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant the Schedules to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this by Industrial Realty Partners under the Real Estate Purchase Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions Nonfulfillment of this Article 10any covenant, each Seller severally (and not jointly) shall indemnifyagreement, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, condition or other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller obligation of the representations and warranties set forth Sellers in Article 4, (b) any unpaid Taxes of any Seller this Agreement or by Industrial Realty Partners under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.Real Estate Purchase Agreement;
(c) Notwithstanding Section 10.2(a) All taxes determined by reference to income, capital gain, gross income, gross receipts, net profits or similar items for all tax periods prior to and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason including the date of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).through Closing;
(d) Notwithstanding anything in Section 10.5(aAny Excluded Asset;
(e) Any Excluded Liability or an Excluded Liabilty under the Real Estate Purchase Agreement.
(f) Liabilities with respect to the contrarywarranty claim of PACCAR; as described in SECTION 12.02(F) SCHEDULE (A);
(g) Third Party and Governmental Environmental Liabilities and Costs;
(h) Buyer's Environmental Expenditures;
(i) Enforcement of this SECTION 12.02; and
(j) Each of the foregoing is referred to as a "Buyer's Indemnified Loss." This indemnification applies notwithstanding the closing, Xxthe delivery of any instruments of conveyance, and regardless of any investigation at any time made by or on behalf of Buyer or of any information Buyer may have. X. CatchotThe obligation of the Sellers to indemnify Buyer for a Buyer Indemnified Loss under SECTION 12.02(A) shall expire in accordance with the expiration of the specific warranty as set forth in SECTION 12.02(A) and SECTION 12.02(H) shall expire on the third (3rd) anniversary of the date of the Closing. Provided, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable however that no claim presented in writing for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations indemnification pursuant to this Article 10ARTICLE XII prior to the termination and expiration of the indemnification obligation as set forth herein will be affected in any way by that termination and expiration.
Appears in 1 contract
Samples: Asset Purchase Agreement (Johnstown America Industries Inc)
Indemnification by the Sellers. (a) From and after the Closing Date, subject Subject to the provisions of this Article 10ARTICLE 9, the Securityholders Sellers hereby agree, jointly and severally, except as provided in Section 10.2(b), shall to indemnify, defend and hold harmless Calavo (including Surviving RFG the Buyer, the Company and their Subsidiaries) and each of their respective officers, directors, shareholdersstockholders, partners, members, employees, other Representativesagents and Affiliates (collectively, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities“Buyer Indemnified Persons”) from and against any and all actual losses, damagesTaxes, liabilities, claims, obligations, liabilities and other costs and expensesdamages (excluding punitive damages except to the extent such punitive damages are required to be paid to a third party pursuant to a Third Party Claim), includingstrict liability, without limitationfines, settlement costsinterest, penalties, assessments, deficiencies, actions, causes of action, arbitrations, proceedings, remediations, judgments, interestsettlements (to the extent entered into in accordance with Section 9.4), penalties violations of Law, costs and expenses (including reasonable attorneys’ fees, accountants’ fees and all other costs and reasonable expenses for investigating incurred in investigating, preparing, or defending any Actionslitigation or proceeding) (collectively, claims and proceedings (all of the foregoing being collectively referred to herein as “LossesBuyer Damages”) that such parties may incur based upon, arising out of, relating to of or resulting from:
(ia) Any the breach of any representation or warranty made by the Sellers contained in this Agreement (including or in any certificate, exhibit, annex, schedule or other agreement document furnished or document delivered pursuant to the Buyer by the Sellers in connection with this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes failure of any Seller to perform any covenant or agreement under Treasury Regulation Section 1.1502-6 (or contained in this Agreement or in any similar provision of statecertificate, local exhibit, annex, schedule or foreign law), as a transferee other document furnished or successor, delivered to the Buyer by contract, such Seller or otherwise and his or its Affiliates in connection with this Agreement;
(c) any breach claim by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed Person for brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding alleged to have agreed to indemnify another been made by any such Person with the Company or any Seller under Section 10.2(a) or 10.2(b) in connection with the transactions contemplated by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).this Agreement;
(d) Notwithstanding anything in Section 10.5(aSeller Taxes; or
(e) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults matters set forth on its obligations pursuant to this Article 10Schedule 9.1(e).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Mattress Firm Holding Corp.)
Indemnification by the Sellers. (a) From and after the Closing Date, subject Subject to the provisions of this Article 1011, from and after Closing, the Securityholders Sellers shall severally, and not jointly or jointly and severally, except as provided in Section 10.2(b)reimburse, shall indemnify, defend indemnify and hold harmless Calavo (including Surviving RFG the Purchaser and their Subsidiaries) and each of their officers, directors, its shareholders, members, employees, other Representatives, Affiliates, successors Representatives and permitted assigns Affiliates (excluding the Sellers to the extent they serve in any such capacities“Purchaser Indemnified Parties”) harmless from and against any and all lossesLegal Proceedings, charges, claims, damages, obligationsLiabilities, liabilities losses, Taxes and other costs expenses (including reasonable attorney’s fees incurred in defending any claim by a third person, and expensesamounts paid in settlement of any claim or suit), including, without limitation, settlement costs, judgments, interestfines, penalties and reasonable attorneys’ feesinterest (collectively, accountants’ fees and other costs and expenses for investigating the “Loss” or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, which are sustained or suffered by the Purchaser Indemnified Parties to the extent caused by or arising out of, relating to or resulting from:
(i) Any a breach of any representation or warranty made by the Company or the Sellers in this Agreement Agreement, provided, that any Taxes (including and other related Losses) arising from a breach of any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b)Tax Reps shall be governed solely by the Indemnified Taxes Indemnity;
(ii) Any a breach of, by the Company or failure to perform, any agreement the Sellers of any RFG Family Entity covenant or any Seller that is contained agreement made by the Company or the Sellers in this Agreement or in any Transaction Document (including any exhibit, schedule or other agreement or document delivered than the covenant in Section 6.7 to the extent the Purchase Price is adjusted pursuant to this AgreementSection 2.2 as a result of Closing Date Capex being different from Target Capex), subject to provided that any Taxes (and other related Losses) arising from a breach of any covenant or agreement contained in Section 10.2(b)6.1 or Section 8.3 shall be governed solely by the Indemnified Taxes Indemnity;
(iii) With respect any amounts of Closing Indebtedness or the Transaction Expenses, solely to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as extent such amounts are not deducted for purposes of determining the payment of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior Estimated Purchase Price to the Closing;Sellers at the Closing pursuant to Section 2.3 or included in the calculation of Closing Date Working Capital; and
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding any Indemnified Taxes (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All indemnity for Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other related Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10clause (iv) shall be the “Indemnified Taxes Indemnity”).
Appears in 1 contract
Indemnification by the Sellers. (a) From and after the Closing Date, subject to the provisions of this Article 10, the Securityholders The Sellers shall jointly and severally, except as provided in Section 10.2(b), shall indemnify, defend severally indemnify and hold harmless Calavo (including Surviving RFG Purchaser and their Subsidiaries) and each of their its directors, officers, directors, shareholders, members, employees, other Representativesagents, Affiliatessubsidiaries and affiliates (collectively, successors the “Purchaser Indemnified Persons”), and permitted assigns will reimburse the Purchaser Indemnified Persons for any loss, liability, claim, damage or expense (excluding the Sellers to the extent they serve in any such capacities) from including reasonable costs of investigation and against any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties defense and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actionsexpenses) (collectively, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting fromfrom any of the following:
(i) Any any inaccuracy or breach of any representation or warranty made by of the Sellers set forth in Section 5 or Section 6 of this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b)the Disclosure Schedule;
(ii) Any any breach of, or failure to perform, any agreement of any RFG Family Entity covenant or any Seller that is contained obligation of the Sellers or the Sellers’ Representative in this Agreement or any Transaction Document (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(bthan the Restrictive Covenants);
(iii) With respect any Tax obligation or liability of any Company for time periods prior to and including the Closing Date (including any Tax liability accrued as at, or arising as a result of events, acts or transactions occurring on or prior to, that date), to the agreements to which Surviving RFG or its Subsidiaries is extent not reflected as a party or is otherwise bound as of current liability in the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the ClosingActual Net Working Capital;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on liability incurred as a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out result of any actions or omissions made or taken by any Seller or any of the RFG Family Entities Company’s operations prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to and including the Closing Date, except (A) to the extent such liability was accurately reflected as a current liability in the Actual Net Working Capital, (B) all Taxes liabilities incurred in the ordinary course of any member of an affiliated, combined or unitary group of which any business since the date of the RFG Family Entities is or was a member on or prior to the Closing DateCurrent Balance Sheet, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) liabilities under any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant which are to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and be performed after the Closing and subject do not relate to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller such Company; or
(v) any liability incurred as a result of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Sellers’ failure to make required filings and/or pay capital gains taxes with respect to Eyelevel China pursuant to Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries11(g).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 1 contract
Indemnification by the Sellers. (a) From Subject to Sections 9.1 and after 9.5, Sellers each hereby agree to indemnify (the Closing Date“Indemnification Obligations”) the Purchaser and its shareholders, subject to the provisions of this Article 10subsidiaries, the Securityholders jointly and severally, except as provided in Section 10.2(b), shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholdersemployees and agents (each a “Purchaser Indemnified Party” and collectively, members, employees, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities“Purchaser Indemnified Parties”) from and against any and all liabilities, losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement damages costs, judgments, interestexpenses, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions(collectively, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to of or resulting from:
, directly or indirectly, (i) Any any breach or inaccuracy of any representation or warranty made by of the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement or in any agreements, exhibits and schedules to this Agreement delivered or to be delivered by or on behalf of a Seller or the Company, or (including ii) any exhibitbreach of any covenant, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) undertaking made by any of Sellers in this Agreement.
(b) Subject to Section 9.5, the RFG Family Entities that occurred prior Sellers shall all further indemnify and hold the Purchaser Indemnified Parties harmless from and against: (i) any Taxes imposed on the Company, Xxxxxxxx Xxxx Penn DISC Company or the Purchaser with respect to any taxable year ending on or before the Closing Date (other than Taxes reflected or accrued for in the Closing Balance Sheets), (ii) any Taxes of the Company, Pitt Penn DISC Company, Spinwell or the Seller imposed with respect to any taxable year beginning before and ending after the Closing Date, to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that extent such Taxes are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior allocable to the Closing;
(A) All Taxes portion of any of the RFG Family Entities for any taxable such period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (Ciii) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successorCompany, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction Xxxxxxxx Xxxx Penn DISC Company or any actions or omissions made or taken by of its Affiliates) for which the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (same or any similar of its Affiliates may be liable under any provision of state, U.S. state or local or foreign law)law or regulations, as a transferee or successor, by contractcontract or otherwise, with respect to any taxable year ending on or otherwise before the Closing Date or beginning before and ending after the Closing Date, and (civ) any breach by other Loss incurred in connection with any such claim for Taxes. The parties acknowledge and agree that the Seller of any covenants applicable to such Seller after the Closing.
(cindemnification obligation set forth in this Section 9.2(b) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder constitutes an affirmative indemnity which shall not be dependent upon the existence of any misrepresentation or other breach of this Agreement by a Seller and which shall be enforceable notwithstanding any disclosures in this Agreement. With respect to taxable years beginning before and ending after the Closing Date, the portion of Taxes allocable to the portion of such taxable year ending on the Closing Date shall (x) in the case of any Taxes other than Taxes based upon or related to income or receipts, be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason be the amount of such other Seller’s position as an officerTaxes for the entire taxable year multiplied by a fraction, directorthe numerator of which is the number of days in the taxable year ending on the Closing Date and the denominator of which is the number of days in the entire taxable year, shareholder, member and (y) in the case of any Taxes based upon or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) related to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree income or receipts be deemed to be jointly and severally liable for any obligations the amount of Liberty Fresh Foods, LLC, Taxes which would be payable if and to the extent that Liberty Fresh Foods, LLC defaults relevant taxable year ended on its obligations pursuant to this Article 10the Closing Date.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Industrial Enterprises of America, Inc.)
Indemnification by the Sellers. (a) From Subject to the other terms and conditions of this Article VIII, from and after the Closing DateClosing, subject to the provisions of this Article 10each Seller shall, the Securityholders jointly and severally, except as provided in Section 10.2(b)defend, shall indemnify, defend indemnify and hold harmless Calavo Buyer, its Affiliates (including Surviving RFG the Conveyed Entities) and their Subsidiaries) and each of their respective officers, directors, employees, shareholders, members, employeespartners, other Representativesagents, Affiliatesrepresentatives, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacitiescollectively, “Buyer Indemnitees”) from and against any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending Losses incurred by any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, Buyer Indemnitee arising out of, relating to or resulting from:
directly or indirectly from the items set forth below: (ia) Any breach or inaccuracy of any representation of the representations or warranty made by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement warranties of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family EntitiesFundamental Representations) imposed on or the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by certification of such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4the certificate contemplated by Section 6.1(a)(iv), in each case without giving effect to any qualification as to materiality, Material Adverse Effect or words of similar import for purposes of determining whether there has been a breach or inaccuracy or the amount of any Loss; (b) Any material breach or material inaccuracy of any unpaid Taxes Fundamental Representation of any Seller under Treasury Regulation or the certification of such representations and warranties set forth in the certificate contemplated by Section 1.1502-6 (or any similar provision of state, local or foreign law6.1(a)(iv), in each case without giving effect to any qualification as to materiality, Material Adverse Effect or words of similar import for purposes of determining whether there has been a transferee breach or successor, by contract, inaccuracy or otherwise and the amount of any Loss; (c) any Any breach by the Seller or violation of any covenants applicable to such covenant, obligation or agreement of any Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) contained in this Agreement or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
in any Transaction Document; (d) Notwithstanding anything Any Seller Taxes and liability for Taxes required to be paid by the Sellers pursuant to the operation of Section 5.2(j)(ii); (e) Any Conveyed Entity Transaction Expenses and any Closing Date Indebtedness not taken into account in reducing the Closing Consideration Amount; (f) Any assets set forth in Section 10.5(a5.15(a) to of the contrary, Xx. X. Catchot, Xx. X. Catchot Seller Disclosure Schedule; and Xx. Xxxxxx (and their Affiliates, to g) The matters set forth in Section 8.2(g) of the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10Seller Disclosure Schedule.
Appears in 1 contract
Samples: Stock Purchase Agreement
Indemnification by the Sellers. (a) From and after the Closing Date, subject to the other provisions of this Article 10X, the Securityholders jointly and Sellers severally, except as with respect to Article IV, and jointly for all other purposes for which indemnification is provided in Section 10.2(b)hereunder, shall indemnify, defend agree to indemnify the Purchaser and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their its officers, directors, shareholdersemployees and Affiliates (including the Company) (collectively, members, employees, other Representatives, Affiliates, successors the “Indemnified Purchaser Persons”) and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) hold each of them harmless from and against any and all Actions, liabilities, losses, costs, damages, obligationsexpenses or penalties, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees expenses and other costs and expenses for investigating disbursements in connection with any Action against such Person whether or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, not arising out of, relating to of or resulting from:
from any Third Party claim (collectively, “Damages”), suffered, paid or incurred by such Indemnified Purchaser Person to the extent resulting from or caused by: (i) Any any breach of any of the representations and warranties made by the Sellers to the Purchaser in Article IV, Article V, Article V-B and Article V-C of this Agreement, or of any breach of any representation or warranty made in respect thereof contained in any certificate delivered by the Company or the Sellers pursuant to this Agreement (ii) any breach by the Company or the Sellers of any covenant or agreement of the Company or the Sellers contained in this Agreement or (including iii) any exhibitTaxes attributable to a Pre-Closing Tax Period allocable to the Sellers under Sections 9.1, schedule or other agreement or document delivered 9.2 and any Taxes that the Sellers are liable for under Section 9.6.
(b) Notwithstanding anything to the contrary in this Section 10.1, the Indemnified Purchaser Persons shall be entitled to indemnification pursuant to this AgreementSection 10.1(a) with respect to any claim for indemnification pursuant to Section 10.1(a)(i) (other than for a breach of representations or warranties set forth in Section 5.7 (Taxes)):
(i) other than in respect of claims for indemnification arising out of, resulting from or caused by a breach of the Seller Fundamental Representations, only if, and then only to the extent that the aggregate Damages to all Indemnified Purchaser Persons (without duplication), with respect to all such claims, exceed $250,000 (the “Deductible”), whereupon (subject to Section 10.2(b)the provisions of clause (ii) below) the Sellers shall be obligated to pay in full all such amounts but only to the extent such aggregate Damages are in excess of the amount of the Deductible;
(ii) Any breach of, only with respect to claims for indemnification made on or failure to perform, any agreement of any RFG Family Entity or any Seller before the date that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or 24 months after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closingprovided, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject with respect to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, claims for indemnification arising out of, relating to or resulting from (a) any or caused by a breach by of the Seller of Fundamental Representations and the representations and warranties set forth in Article 4, Sections 5.7 (bTaxes) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 and 5.13 (or any similar provision of state, local or foreign lawBenefit Plans), as a transferee the Indemnified Purchaser Persons shall be entitled to indemnification pursuant to Section 10.1(a)(i) with respect to any such claim indefinitely or successoruntil the latest date provided for their survival in Section 12.1; and
(iii) only to the maximum amount of Damages of two million dollars ($2,000,000) (the “Cap”), by contract, or otherwise and (c) any breach by provided that such Cap shall not apply to the Seller of any covenants applicable to such Seller after the ClosingFundamental Representations.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 1 contract
Indemnification by the Sellers. (a) From and after the Closing Date, subject Subject to the provisions terms and conditions of this Article 106, the Securityholders jointly Sellers shall, severally and severallynot jointly, except as provided in Section 10.2(b), shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and Buyer, the Acquired Companies, each of their officers, directors, shareholders, members, employees, other Representativesrespective Subsidiaries, Affiliates, and successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities“Buyer Indemnitees”) from and against the entirety of any and all lossesAdverse Consequences that any Buyer Indemnitee may suffer or incur (including any Adverse Consequences they may suffer or incur after the end of any applicable Limitation Date, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending provided that an indemnification claim with respect to such Adverse Consequence is made pursuant to this Article 6 prior to the end of any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”applicable Limitation Date) that such parties may incur based uponresulting from, arising out of, relating to to, in the nature of, or resulting from:
(i) Any caused by any breach or inaccuracy of any representation or warranty made by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to Article 3 of this Agreement).
(b) The Sellers shall severally and not jointly, subject pay and otherwise fully satisfy and discharge all Designated Pre-Closing Liabilities, and shall indemnify, defend and hold all Buyer Indemnitees harmless from, and shall reimburse all Buyer Indemnitees for all Adverse Consequences sustained or incurred by any of them in connection with any Designated Pre-Closing Liabilities.
(c) The Sellers shall severally and not jointly, indemnify, defend and hold all Buyer Indemnitees harmless with respect to Section 10.2(b);
all Adverse Consequences resulting from or relating to (i) all Taxes (or the nonpayment thereof) of the Acquired Companies for any Pre-Closing Tax Period and any Pre-Closing Straddle Period; (ii) Any breach of, all Taxes imposed on or failure to perform, incurred by any agreement of any RFG Family Entity Acquired Company caused by or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to resulting from the transactions contemplated by this Agreement), subject to Section 10.2(b);
; (iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an any affiliated, combined or unitary group of which any of the RFG Family Entities Acquired Company is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, provincial, municipal, local or foreign Law; and (Civ) any and all Taxes of any Person (other than the RFG Family Entitiesany Acquired Company) imposed on the RFG Family Entities any Acquired Company as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to before the Closing Date; and
(v) any and all payroll, employment, withholding and other similar Taxes with respect to any payments contemplated by this Agreement (including any releases or distribution from the Escrow Account); (vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior Taxes deferred pursuant to the Closing Date of CARES Act or any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.other similar governmental program; and
(vii) Any litigationany Taxes related to the holding, arbitrationtransfer, investigation redemption, or other claim or legal proceedingdisposition of any Equity Investments; and (viii) any breach of any covenant related to Taxes herein, whether brought before or after the Closingincluding, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;without limitation, those set forth in Article 7.
(bd) From and after the Closing and subject Subject to the provisions terms and conditions of this Article 106, each Seller shall severally (and not jointly) shall jointly indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns the Buyer Indemnitees from and against the entirety of any and all Losses Adverse Consequences that any Buyer Indemnitee may suffer or incur (including any Adverse Consequences they may suffer or incur after the end of any applicable Limitation Date, provided that an indemnification claim with respect to such Parties may incur based uponAdverse Consequence is made pursuant to this Article 6 prior to the end of any applicable Limitation Date) resulting from, arising out of, relating to to, in the nature of, or resulting from caused by (ai) any breach or inaccuracy of any representation or warranty made by the such Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes 2 of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contractthis Agreement, or otherwise and (cii) any breach by the Seller of or failure to perform any covenants applicable to covenant or agreement of such Seller after the Closing.
in this Agreement or in any Ancillary Agreement (c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed other than those related to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their SubsidiariesTaxes).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 1 contract
Samples: Stock Purchase Agreement (Kingsway Financial Services Inc)
Indemnification by the Sellers. Each of the Sellers shall indemnify each of the Company and the Purchasers and their respective Affiliates, shareholders (a) From and after other than the Closing Date, subject to the provisions of this Article 10, the Securityholders jointly and severally, except as provided in Section 10.2(bSellers), shall indemnifypartners, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representativesagents, Affiliatesrepresentatives, successors and permitted assigns (excluding collectively, the Sellers to "COMPANY PARTIES") and save and hold each of them harmless against and pay on behalf of or reimburse such Company Parties as and when incurred for any loss, liability, demand, claim, action, cause of action, cost, damage, deficiency, Tax, penalty, fine or expense, whether or not arising out of third party claims (including interest, penalties, reasonable attorneys' fees and expenses and all amounts paid in investigation, defense or settlement of any of the extent they serve in foregoing) (collectively, "LOSSES"), which any such capacities) from and against any and all lossesCompany Party may suffer, damagessustain or become subject to, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out a result of, in connection with, relating or incidental to or resulting from:
by virtue of: (ia) Any any breach of any representation or warranty made of the Company or the Sellers under Section 5 (other than Xxxxxxxxx 0X) or Section 6 of this Agreement; (b) any breach of any representation or warranty of the Company or the Sellers under Paragraph 5R of this Agreement; (c) any nonfulfillment or breach of any covenant or agreement by the Company or any of the Sellers in under this Agreement required to be performed or complied with by the Company or any of the Sellers at or prior to the Closing; (including d) any exhibit, schedule nonfulfillment or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity covenant or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior Sellers under this Agreement required to be performed or complied with by any of the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or Sellers after the Closing, that is based upon ; or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (Ce) any and all Taxes of claim by any Person (other than the RFG Family EntitiesPurchasers) imposed on the RFG Family Entities with respect to, or arising as a transferee or successorresult of, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to Company Transaction (other than the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, Company Transaction that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and Agreement); PROVIDED THAT the Sellers shall not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against have any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from liability under clauses (a), (c), (d) any breach by the Seller of or (e) above (other than with respect to the representations and warranties contained in Paragraph 5B and Xxxxxxxxx 0X and the covenants and agreements contained in this Section 8) unless the aggregate of all Losses relating thereto for which the Sellers would, but for this proviso, be liable exceeds on a cumulative basis an amount equal to $250,000, and then the Sellers shall be liable only to the extent of such excess; and PROVIDED FURTHER that the Sellers shall not have any liability under clause (b) above unless the aggregate of all Losses relating thereto for which the Sellers would, but for this proviso, be liable exceeds on a cumulative basis an amount equal to $1,000,000, and then the Sellers shall be liable only to the extent of such excess; and PROVIDED FURTHER that the Sellers' aggregate liability under clauses (a), (b), (c) and (d) above (other than with respect to the representations and warranties contained in Paragraph 5B and Xxxxxxxxx 0X and the covenants and agreements contained in this Section 8) shall in no event exceed $15,000,000 (it being understood, however, that nothing in this Agreement (including this Paragraph 8B) shall limit or restrict any of the Company Parties' right to maintain or recover any amounts in connection with any action or claim based upon fraudulent misrepresentation or deceit). All indemnification payments for the benefit of the Company under this Paragraph 8B shall be deemed to be adjustments to the Repurchase Price set forth in Article 4, (b) any unpaid Taxes Paragraph 1A above. All indemnification payments for the benefit of any Seller Purchaser under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder this Paragraph 8B shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) be adjustments to the contraryPurchase Price set forth in Paragraph 1B above. In no event shall the Sellers' obligations in respect of the indemnification provided for in this Paragraph 8B, Xxor any expense reimbursement obligation of the Company provided for herein, be treated as subordinated indebtedness of the Company or as a restricted payment pursuant to any agreement to which the Company is a party or be otherwise restricted or deferred. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, Subject to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLClimitations set forth above, if and to the extent any provision of this Paragraph 8B is unenforceable for any reason, each Seller hereby agrees to make the maximum contribution to the payment and satisfaction of any Loss for which indemnification is provided for in this Paragraph 8B which is permissible under applicable laws. Notwithstanding any provision herein to the contrary, in no event shall the Sellers be obligated to make duplicative indemnity payments hereunder (i.e., if the Company incurs a Loss for which it is entitled to (and actually receives) indemnification from the Sellers hereunder, the Sellers shall not thereafter be liable to the Purchasers or any other Company Parties for the same Loss, unless the Purchasers or any such other Company Parties have also incurred a Loss with respect to the matter which gave rise to such indemnification obligation). Except with respect to injunctive relief, the Company and the Purchasers acknowledge and agree (on behalf of themselves and the other Company Parties) that Liberty Fresh Foods, LLC defaults on its obligations from and after the Closing their sole and exclusive remedy with respect to any and all claims relating to the subject matter of this Agreement shall be pursuant to the indemnification provisions set forth in this Article 10.Paragraph 8B.
Appears in 1 contract
Indemnification by the Sellers. (a) From and after Other than with respect to Taxes, the Closing Date, indemnification of which will be subject to the provisions of this Article 10Section 9.02(b), the Securityholders Sellers shall jointly and severally, except as provided in Section 10.2(b), shall severally indemnify, defend and hold harmless Calavo (including Surviving RFG Purchaser and their Subsidiaries) and each of their its officers, directors, shareholders, members, employees, other Representatives, Affiliates, representatives, agents and the successors and permitted assigns of all of them (excluding the Sellers to the extent they serve each, a "Purchaser Indemnitee") harmless in respect of any such capacities) from and against any and all lossesLiabilities, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costsor expenses (including reasonable attorneys' fees), judgments, interestfines, penalties losses, claims, damages and reasonable attorneys’ feesamounts paid in settlement (collectively, accountants’ fees and other costs and expenses for investigating "Damages") arising from or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting from:
in connection with (i) Any the failure or breach of any representation or warranty made of the Sellers under this Agreement, in the Sellers' Disclosure Schedule, in any certificate delivered pursuant hereto to be true and correct as of the date hereof and as of the Closing Date or any other Transaction Document, (ii) the failure of the Sellers to duly perform or observe any term, provision, covenant or agreement to be performed or observed by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity Agreement or any Seller that is contained other Transaction Document or in this Agreement (including any exhibitthe schedules, schedule exhibits, certificates or other agreement documents delivered by Sellers pursuant hereto or document delivered pursuant to this Agreement)thereto, subject to Section 10.2(b);
(iii) With all Liabilities, other than the Assumed Liabilities, (iv) any Employee Benefit Plan, or to any other Employee Program ever sponsored, maintained or contributed to by (or with respect to which any obligation to make a contribution ever existed on the agreements to which Surviving RFG part of) either Seller or its Subsidiaries is a party or is otherwise bound as any ERISA Affiliate; and (v) the operations of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred Business prior to the Closing;.
(ivb) Any litigationThe Sellers, arbitrationjointly and severally, shall be liable for, and shall indemnify and hold harmless the Purchaser Indemnitees from and against: (i) any and all liability for Taxes (and that portion of the Purchaser's costs for the preparation of each relevant Tax Return and the defense of each relevant audit, investigation or other claim or legal proceeding with respect to Taxes) of either Seller; (including, without limitation, ii) any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities all liability for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, consolidated, combined or unitary group of which either of the Sellers or any of the RFG Family Entities their subsidiaries (or any predecessors thereto) is or was a member on or prior to the Closing Datemember, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign LawLaw or regulation; and (Ciii) any and all liability for Taxes of any Person (other than either of the RFG Family EntitiesSellers) imposed on either of the RFG Family Entities Sellers as a transferee or transferee, successor, by Contract contract, or pursuant to any Law, which Taxes relate to an event rule or transaction occurring on regulation; (iv) any and all liability resulting from the breach of any representation or prior to the Closing Datewarranty contained in Section 3.07; and
and (viv) All payments any and other Losses made or incurred by any RFG Family Entity after the Closing Date that are all liability for reasonable legal fees and expenses attributable to any guarantees executed by such RFG Family Entity prior to item in the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closingforegoing clauses.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 1 contract
Samples: Asset Purchase Agreement (Sunland Entertainment Co Inc)
Indemnification by the Sellers. (a) From and after the Closing Date, subject to the provisions of this Article 10Closing, the Securityholders Sellers shall severally (in accordance with their respective Consideration Allocations) but not jointly (provided, that (i) the Apollo Sellers shall, solely as between themselves and the other Sellers that are not Reverence Sellers, be jointly and severallyseverally liable for breaches of Company Fundamental Representations that relate to any Seller other than a Reverence Seller, except for breaches or nonfulfillment of covenants of any Seller other than a Reverence Seller, and for fraud by any Seller other than a Reverence Seller, with respect to which no Reverence Seller shall have any liability, and (ii) the Reverence Sellers shall, solely as provided in Section 10.2(bbetween themselves, be jointly and severally liable for breaches of Company Fundamental Representations that relate to any Reverence Seller, for breaches or nonfulfillment of covenants of any Reverence Seller, and for fraud by any Reverence Seller, with respect to which no other Seller shall have any liability), shall indemnifysave, defend defend, indemnify and hold harmless Calavo Parent and its Affiliates (including Surviving RFG the Company and their its Subsidiaries) and each of their ), officers, directors, shareholders, members, employees, other Representatives, Affiliatesagents, successors and permitted assigns (excluding collectively, the Sellers to the extent they serve in any such capacities“Parent Indemnified Parties”) from and against any and all lossesLosses incurred, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating sustained or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting from:
(i) Any breach of any representation or warranty made by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) suffered by any of the RFG Family Entities that occurred prior to the Closing;foregoing as a result of, arising out of or relating to, without duplication:
(iva) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes breach of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the TrustCompany Fundamental Representations;
(b) From and after any breach of any covenant or agreement of the Sellers contained in this Agreement, or any breach prior to the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to covenant or resulting from (a) any breach agreement by the Seller of the representations and warranties set forth Company contained in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and this Agreement;
(c) any breach by Leakage or Excluded Liabilities to the Seller of any covenants applicable to such Seller after extent not deducted from the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).Merger Consideration;
(d) Notwithstanding any Appraisal Shares, and any claim made by any Seller for appraisal; and
(e) (i) any Taxes imposed on the Company or any of its Subsidiaries attributable to a Pre-Locked Box Tax Period, (ii) any Taxes resulting from or attributable to the termination of any intercompany arrangements pursuant to Section 6.5, (iii) any Taxes imposed on any of the pre-Closing transactions enumerated on Schedule 6.19(g) and (iv) any amounts for which Sellers are liable pursuant to Section 6.19(b); provided, that, notwithstanding anything in Section 10.5(a) this Agreement to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive Sellers shall not have any payments from Liberty Fresh Foods, LLCindemnification obligation under this Section 8.2(e) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foodssuch Taxes (1) were included in the computation of the Closing Adjustment Amount, LLC defaults (2) were included on its obligations pursuant to this Article 10.the Locked Box Balance Sheet, (3) constitute deferred Tax liabilities or
Appears in 1 contract
Indemnification by the Sellers. (a) From and after the Closing Date, subject The Sellers agrees to the provisions of this Article 10, the Securityholders jointly and severally, except as provided in Section 10.2(b), shall indemnify, defend indemnify and hold harmless Calavo EGPI and/or the Company against and in respect to all damages (including Surviving RFG and their Subsidiariesas hereinafter defined) and each of their officersup to $3.6 million dollars Damages, directorsas used herein shall include any claim, shareholderssalary, memberswage, employeesaction, other Representativestax, Affiliatesdemand, successors and permitted assigns loss, cost, expense, liability (excluding the Sellers to the extent they serve in any such capacities) from and against any and all lossesjoint or several), damagespenalty, obligations, liabilities and other costs and expensesdamage, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ counsel fees and other costs and expenses for reasonably incurred in investigating or defending attempting to avoid same or in opposition to the imposition thereof, or in enforcing this indemnity, resulting to EGPI and/or the Company from any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting from:
(i) Any breach of any inaccurate representation or warranty made by or on behalf of the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity of the warranties made by or any Seller that is contained on behalf of the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to or breach or default in the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of performance by the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes Sellers of any of the RFG Family Entities for obligations to be performed by him hereunder. Hereunder, EGPI shall determine whether EGPI, the Company or both EGPI and the Company are entitled to be indemnified and such determination shall be binding on the Sellers. Notwithstanding the scope of the Sellers’ representations and warranties herein, or of any taxable period ending on individual representation or warranty, or any disclosure to EGPI herein or pursuant hereto, or the definition of damages contained in the preceding sentence, or EGPI’s knowledge of any fact or facts at or prior to the Closing Date, (B) damages shall also include all Taxes debts, liabilities, and obligations of any member of an affiliatednature whatsoever (whether absolute, combined accrued, contingent, or unitary group of which any otherwise, and whether due or to become due) of the RFG Family Entities is Company, as of the date hereof not reflected in the Financial Statement or was a member on any other exhibit furnished hereunder, whether known or unknown by the Sellers; all claims, actions, demands, losses, costs, expenses, and liabilities resulting from any litigation from causes of action arising prior to the Closing Date involving the Company or any stockholders thereof other than the Sellers, whether or not disclosed to EGPI; all claims, actions, demands, losses, costs, expenses, liabilities and penalties resulting from (i) the Company’s infringement or claimed infringement upon or acting adversely to the rights or claimed rights of any person under or in respect to any copyrights, trademarks, trademark rights, patents, patent rights or patent licenses; or (ii) any claim or pending or threatened action with respect to the matters described in clause (i); all claims, actions, demands, losses, costs, expenses, liabilities or penalties resulting from the Company’s failure in any respect to perform any obligation required by it to be performed at or prior to the effective date hereof or at or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes by reason of any Person (other than default of the RFG Family Entities) imposed on Company, at the RFG Family Entities as a transferee effective date hereof or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to at the Closing Date, under any of the contracts, agreements, leases, documents, or other commitments to which it is a party or otherwise bound or affected; and
and all losses, costs, and expenses (viincluding without limitation all fees and disbursements of counsel) All payments and other Losses relating to damages. The Sellers shall reimburse and/or pay on behalf of EGPI and/or the Company on demand for any payment made or incurred required to be made by EGPI and/or the Company at any RFG Family Entity time after the Closing Date that are attributable based upon the judgment of any court of competent jurisdiction or pursuant to any guarantees executed by such RFG Family Entity prior a bona fide compromise or settlement of claims, demands or actions, in respect to the Closing Date damages to which the foregoing indemnity relates. EGPI shall give, or EGPI shall cause the Company to give, the Sellers written notice within 30 days after notification of any obligations litigation threatened or instituted against the Company which might constitute the basis of any Seller or of any Affiliate of any Seller, including without limitations a claim for indemnity by EGPI and/or the guarantees executed by GHCA of Company against the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Sellers. Notwithstanding anything contained in Section 10.5(a) this Agreement to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, the right to indemnification described in this paragraph shall expire 18 months after the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10Closing Date.
Appears in 1 contract
Indemnification by the Sellers. (a) From and after Each of the Closing DateSellers, subject to the provisions of this Article 10, the Securityholders jointly and severally, except as provided shall indemnify the Buyer in respect of, and hold the Buyer harmless against, any and all Damages incurred or suffered by the Buyer or any Affiliate thereof resulting from, relating to, constituting or arising out of: any misrepresentation or breach of warranty by any of the Sellers contained in this Agreement or any of the Ancillary Agreements; any failure to perform any covenant or agreement of any of the Sellers contained in this Agreement or any of the Ancillary Agreements; any Retained Liabilities; any and all Taxes to the extent specified in Section 10.2(b7.10(a)(i); any and all matters relating to the Lafayette Paper, 1st Urban Fiber/Hagerstown Fiber Limited Partnership, Xxxxxxx Container and Cadidavid projects or engagements, including without limitation any actual or alleged product warranty and/or product liability claims relating thereto, the collection of all Accounts Receivable associated therewith, any suits, proceedings or actions resulting therefrom, any attorneys' fees, amounts paid to investigate, defend or settle such claims and any awards of damages, costs or penalties related thereto; PAGE any guaranty, warranty, right of return, credit or other indemnity obligation undertaken by any of the Sellers in connection with the Business prior to the U.S. Closing (or, with respect to any such obligation of BC France, the France Closing), shall indemnifyin each case to the extent such obligation is beyond the Seller's standard terms and conditions of sale or lease; any and all matters relating to claims or allegations made by, or liabilities or obligations to, Xxxxxxxxx Xxx, AITC and/or their respective Affiliates, including without limitation the matters alleged in that certain four page letter dated April 18, 1997, from Xxxxxxx X. Xxxxxxx, Xx. of Xxxxxxx & Xxxxxxx, LLP to Xxxxxxx P.H. Xxxxxxx of Braunschweig & Xxxxxxx, and any suits, proceedings or actions resulting therefrom, any attorneys' fees, amounts paid to investigate, defend or settle such claims and hold harmless Calavo (including Surviving RFG any awards of damages, costs or penalties related thereto; any and all matters relating to claims or allegations by, or liabilities or obligations to, Sulzer Inc., Voith Sulzer Paper Technology North America, Inc., Voith Sulzer Papiertechnik GmbH, and/or their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, respective Affiliates, successors including without limitation the matters referred to in the Settlement and permitted assigns License Agreement dated March 22, 1996 among Black Xxxxxxx and such entities; any and all matters relating to claims or allegations by, or liabilities or obligations to, GL&V-Paper Machine Group Inc. and/or its Affiliates, including without limitation the matters referred to in the Right of First Offer Agreement dated as of March 15, 1996 among Black Xxxxxxx, Black Xxxxxxx-Xxxxxxx, Ltd. and GL&V-Paper Machine Group Inc.; any and all matters relating to claims or allegations by, or liabilities or obligations to, PWA Papierwerke Waldhof-Aschaffenburg AG (excluding Germany) and/or its Affiliates, including without limitation the matters referred to in the Settlement Agreement dated May 17, 1993 between Black Xxxxxxx and such entity; or the failure of the Buyer and the Sellers in connection with the sale of the Acquired Assets by the Sellers to the extent they serve in any such capacities) from and against any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting from:
(i) Any breach of any representation or warranty made by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered Buyer pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to comply with and obtain for the extent their Affiliates receive Buyer the benefits afforded by compliance with any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.applicable bulk transfer laws. PAGE
Appears in 1 contract
Indemnification by the Sellers. (a) From and after the Closing Datedate hereof, subject to each of the provisions of this Article 10Sellers, the Securityholders jointly and severally, except as provided in Section 10.2(b), shall indemnify, defend and hold harmless Calavo (including theglobe, Merger Sub, the Surviving RFG and their Subsidiaries) Corporation and each of their respective Affiliates, officers, directors, shareholdersemployees, members, employeesagents, other Representativessuccessors, Affiliates, successors transferees and permitted assigns (excluding the Sellers to the extent they serve in any such capacitiescollectively, "theglobe Indemnified Group") from and against all Losses incurred or suffered by any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all member of the foregoing being collectively referred to herein as “Losses”) that such parties may incur theglobe Indemnified Group based upon, resulting from or arising out of, relating to or resulting from:
of (i) Any the breach of any representation or warranty made by of any of the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is the Company contained in this Agreement or any of the Ancillary Documents, (including ii) the breach of any exhibitcovenant or agreement of any of the Sellers (provided, schedule however, that in no event will any Seller be liable for any breach of the covenants contained in Section 5.4 of this Agreement by any other Seller) or other agreement the Company (but with respect to the Company only for breaches of covenants and agreements to be performed prior to or document delivered pursuant to at the Effective Time) contained in this Agreement)Agreement or any of the Ancillary Documents, subject to Section 10.2(b);
(iii) With any indebtedness of the Company for borrowed money (which shall in no event include lease obligations of the Company or ordinary course trade payables) other than the Naylor Note incurred prior to or at the Effective Time which remaxxx xxtstanding at the Effective Time (the Losses to include the dollar amount of any such indebtedness), (iv) the exercise of dissenters' rights by holders of Dissenting Shares (the Losses to include the entire amount of any payments required to be made by the Company in respect of dissenters' rights), (v) Transaction Costs (as defined below) to the agreements extent they exceed $150,000, (vi) any claims relating to which Surviving RFG shares of Company Common Stock issued, and Warrants, Options or its Subsidiaries is a party other equity awards granted, by the Company, (vii) any claims relating to the McGoodwin Employment Agreement or is otherwise bound as the McKeown Employment Agreemenx xxx xxx payments made (and the calcuxxxxxxx of the Closingamount of such payments) thereunder, (viii) any breaches disclosure made in the Information Statement based upon or defaults (or events giving rise derived from any erroneous information provided to such breaches or defaults) theglobe by any of the RFG Family Entities that occurred Shareholders or, prior to or at the Effective Time, by the Company and (ix) any claims relating to the Letter Agreement, dated June 30, 1998, between Jay Powers and the Company. "Transaction Costs" shall mean the agxxxxxxx xxount of all fees and expenses of financial, legal, accounting and other advisors retained by the Company and other out-of-pocket costs of the Company incurred in connection with the transactions contemplated hereby paid at any time or payable by the Company (other than such fees and expenses which the Shareholders, prior to the Closing;
(iv) Any litigation, arbitration, investigation have paid or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule agreed in writing to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiariespay).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 1 contract
Samples: Merger Agreement (Theglobe Com Inc)
Indemnification by the Sellers. (a) From and after Each of the Closing DateSellers shall, subject to the provisions of this Article 10, the Securityholders jointly and severally, except as provided in Section 10.2(b)defend, shall indemnify, defend indemnify and hold harmless Calavo (including Surviving RFG the Purchaser, its Affiliates and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other respective Representatives, Affiliates, successors and permitted assigns (excluding collectively, the Sellers to the extent they serve in any such capacities“Purchaser Indemnified Parties”) from and against any and all losses, damages, obligationsliabilities, liabilities and other costs and expensesdeficiencies, includingaudits, without limitationclaims, settlement costsinterest, awards, judgments, interestsettlements, penalties fines, penalties, fees, Taxes, costs and expenses (including reasonable attorneys’ fees, accountants’ fees costs and other costs and out-of-pocket expenses for investigating incurred in investigating, preparing, defending or defending any Actionssettling the foregoing) (hereinafter collectively, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, resulting from or relating to or resulting fromto:
(ia) Any any breach of any representation or warranty made by the Sellers of either Seller contained in this Agreement or any Ancillary Agreement (including without giving effect to any exhibit, schedule qualification as to “materiality” or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b“Material Adverse Effect” contained therein);
(iib) Any any breach of, or failure to perform, any agreement of any RFG Family Entity covenant or any agreement by either Seller that is contained in this Agreement (including or any exhibit, schedule or other agreement or document delivered pursuant to this Ancillary Agreement), subject to Section 10.2(b);
(iiic) With any Excluded Liability;
(d) any Liability for federal, state, local or foreign income or other Tax (i) of either Seller or its Affiliates, (ii) payable with respect to or that may be asserted against the agreements to which Surviving RFG Business or its Subsidiaries is a party or is otherwise bound as of the Closing, Transferred Assets for any breaches or defaults period (or events giving rise to such breaches or defaultspartial period) by any of the RFG Family Entities that occurred prior to the Closing;
, (iii) incident to or arising as a consequence of the consummation by the Sellers of the transactions contemplated hereby (including income Taxes arising as a result of the Sellers transferring the Transferred Assets) or (iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken payable by any either Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous (or similar provision of state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities ), as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trustotherwise;
(be) From and after the Closing and subject any Liability arising as a result of or in connection with either Seller’s failure to the provisions of this Article 10, each Seller severally comply with “bulk sales,” “bulk transfers” or similar Laws;
(and not jointlyf) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, Liability arising out of, relating to of or resulting from in connection with (ai) any breach by the Seller termination of the representations and warranties set forth in Article 4, (b) any unpaid Taxes employment or layoff of any Seller under Treasury Regulation Former Business Employee other than as specifically provided in Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a6.3(g)(v) or 10.2(b(ii) by reason of such other either Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) failure to comply with the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.WARN Act;
Appears in 1 contract
Indemnification by the Sellers. (a) From and after the Closing Date, subject to the other provisions of this Article 10X, the Securityholders jointly and Sellers severally, except as with respect to Article IV, and jointly for all other purposes for which indemnification is provided in Section 10.2(b)hereunder Sellers’ Disclosure Letter, shall indemnify, defend agree to indemnify the Purchaser and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their its officers, directors, shareholdersemployees and Affiliates (including the Company) (collectively, members, employees, other Representatives, Affiliates, successors the “Indemnified Purchaser Persons”) and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) hold each of them harmless from and against any and all Actions, liabilities, losses, costs, damages, obligationsexpenses or penalties, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees expenses and other costs and expenses for investigating disbursements in connection with any Action against such Person whether or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, not arising out of, relating to of or resulting from:
from any Third Party claim (collectively, “Damages”), suffered, paid or incurred by such Indemnified Purchaser Person to the extent resulting from or caused by: (i) Any any breach of any of the representations and warranties made by the Sellers to Purchaser in Article IV, Article V, Article V-B and Article V-C of this Agreement, or of any breach of any representation or warranty made in respect thereof contained in any certificate delivered by the Company or the Sellers in pursuant to this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any any breach of, by the Company or failure to perform, the Sellers of any covenant or agreement of any RFG Family Entity the Company or any Seller that is the Sellers contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect any Taxes attributable to a Pre-Closing Tax Period allocable to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Sellers under Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;9.2.
(b) From Notwithstanding anything to the contrary in this Section 10.1, the Indemnified Purchaser Persons shall be entitled to indemnification pursuant to Section 10.1(a) with respect to any claim for indemnification pursuant to Section 10.1(a)(i):
(i) other than in respect of claims for indemnification arising out of, resulting from or caused by a breach of the Seller Fundamental Representations or a breach of representations or warranties set forth in Section 5.7 (Taxes), only if, and after then only to the Closing and extent that the aggregate Damages to all Indemnified Purchaser Persons (without duplication), with respect to all such claims, exceed $150,000 (the “Deductible”), whereupon (subject to the provisions of this Article 10clause (ii) below) the Sellers shall be obligated to pay in full all such amounts but only to the extent such aggregate Damages are in excess of the amount of the Deductible; and
(ii) only with respect to claims for indemnification made on or before the date that is 24 months after the Closing Date; provided, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, with respect to claims for indemnification arising out of, relating to or resulting from (a) any or caused by a breach by of the Seller of the representations Fundamental Representations and warranties set forth in Article 4, Sections 5.7 (bTaxes) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 and 5.13 (or any similar provision of state, local or foreign lawBenefit Plans), as a transferee the Indemnified Purchaser Persons shall be entitled to indemnification pursuant to Section 10.1(a)(i) with respect to any such claim indefinitely or successor, by contract, or otherwise and (c) any breach by until the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and latest date provided for their Subsidiaries).
(d) Notwithstanding anything survival in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 1012.1.
Appears in 1 contract
Indemnification by the Sellers. Each Seller agrees, as a consequence ------------------------------ of the inclusion of any of its 4MC Shares in a Registration Statement, severally and not jointly, to (ai) From and after the Closing Date, subject to the provisions of this Article 10, the Securityholders jointly and severally, except as provided in Section 10.2(b), shall indemnify, defend indemnify and hold harmless Calavo 4MC, its directors (including Surviving RFG and their Subsidiaries) any person who, with his or her consent, is named in the Registration Statement as a director nominee of 4MC), its officers who sign any Registration Statement and each person, if any, who controls 4MC within the meaning of their officerseither Section 15 of the Securities Act or Section 20 of the Exchange Act, directorsagainst any losses, shareholdersclaims, membersdamages or liabilities to which 4MC or such other persons may become subject, employeesunder the Securities Act or otherwise, other Representativesinsofar as such losses, Affiliatesclaims, successors and permitted assigns damages or liabilities (excluding or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in such Registration Statement or Prospectus or arise out of or are based upon the Sellers omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in light of the circumstances under which they were made, in the case of the Prospectus), not misleading, in each case to the extent they serve extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to 4MC by such Seller expressly for use therein, and (ii) reimburse 4MC for any such capacities) from and against any and all losses, damages, obligations, liabilities and legal or other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for incurred by 4MC in connection with investigating or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein such action or claim as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting from:
(i) Any breach of any representation or warranty made by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that expenses are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closingincurred.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 1 contract
Indemnification by the Sellers. (a) From Subject to the limitations set forth in this Article VIII (including the provisions of Section 8.1), from and after the Closing DateClosing, subject to the provisions of this Article 10, the Securityholders jointly Buyer and severally, except as provided in Section 10.2(b), shall indemnify, defend and hold harmless Calavo its Affiliates (including Surviving RFG the Company and their the Subsidiaries) and each of their respective directors, officers, directorsmanagers, members, shareholders, memberspartners, employees, other Representativesagents, Affiliatesrepresentatives, successors and permitted assigns (excluding collectively, the Sellers “Buyer Indemnitees”) shall be indemnified and held harmless:
(i) by each Seller jointly and severally up to and to the extent they serve in of the amounts drawn from the Indemnity Escrow Funds and thereafter each Seller severally and not jointly shall be solely responsible (with respect to breaches of such Seller) for any such capacities) Losses exceeding the Indemnity Escrow Funds, from and against any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating Loss incurred or defending suffered by any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, Buyer Indemnitees following the Closing arising out of, relating to or resulting from:
as a result of (iA) Any any breach of, inaccuracy in or failure to be true and correct of any representation or warranty made by of such Seller contained in Article V of this Agreement (including the Sellers Company Disclosure Letter and Exhibits attached hereto and the certificates delivered pursuant hereto) or (B) any breach of any covenant or agreement of such Seller contained in this Agreement (including any exhibit, schedule or other agreement or document the Company Disclosure Letter and Exhibits attached hereto and the certificates delivered pursuant to this Agreement), subject to Section 10.2(bhereto);
(ii) Any breach ofby the Sellers, or failure jointly and severally up to perform, any agreement and to the extent of any RFG Family Entity or any the amounts drawn from the Indemnity Escrow Funds and thereafter each Seller that is contained severally and not jointly (in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreementaccordance with such Seller’s pro rata share of the Purchase Price Cap), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG from and against any Loss incurred or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) suffered by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to Buyer Indemnitees following the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from as a result of (aA) any breach of, inaccuracy in or failure to be true and correct of any representation or warranty of the Company contained in Article IV of this Agreement (including the Company Disclosure Letter and Exhibits attached hereto and other than any representation or warranty contained in Section 4.6 (Taxes), indemnification for which shall be governed solely and exclusively by subsection (v) below) or (B) the breach of any covenant or agreement of the Company contained in this Agreement (including the Company Disclosure Letter and Exhibits attached hereto and the certificates delivered pursuant hereto);
(iii) by the Seller of the representations and warranties set forth in Article 4Sellers, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if up to and to the extent that Liberty Fresh Foodsof the amounts drawn from the Special Indemnity Escrow Funds, LLC defaults from and against any Loss incurred or suffered by any of the Buyer Indemnitees following the Closing arising out of, or relating to or as a result of any of the matters set forth on its Section 8.3(a)(iii) of the Company Disclosure Letter (the “Special Indemnity Matters”);
(iv) by the Sellers, jointly and severally up to and to the extent of the amounts drawn from the Indemnity Escrow Funds and thereafter severally and not jointly (in accordance with such Seller’s pro rata share of the Purchase Price Cap), from and against any Loss incurred or suffered by any of the Buyer Indemnitees following the Closing arising out of, relating to or as a result of (a) the termination and/or repayment of the Obligations (as defined in the Credit Facility) under the Credit Facility, and (b) the termination and/or repayment of the outstanding amounts and obligations pursuant to this Article 10.under the Owemanco Mortgage Commitment; and
(v) by the Sellers, severally and not jointly, for any Pre-Closing Taxes and Losses related thereto;
Appears in 1 contract
Samples: Stock Purchase Agreement (CPI International Holding Corp.)
Indemnification by the Sellers. (a) From and after If the Closing Dateoccurs, subject to each of the provisions of this Article 10Sellers, the Securityholders jointly and severally, except as provided in Section 10.2(b), shall indemnify, defend indemnify and hold harmless Calavo the Purchaser and its Affiliates (including Surviving RFG and MANO, MANO I, Manischewitz and their Subsidiaries) Subsidiaries following the Closing Date), and each of their respective directors, officers, directorsemployees, shareholdersagents, representatives, stockholders, partners, members, employees, other Representatives, Affiliates, managers and controlling parties and all of their successors and permitted assigns (excluding collectively the Sellers to the extent they serve in any such capacities"Purchaser Indemnified Parties" and individually a "Purchaser Indemnified Party") from and defend each of them from and against and will pay each Purchaser Indemnified Party for any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating Losses resulting from or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, or in connection with, or relating to or resulting fromto:
(ia) Any any inaccuracy or breach of any representation or warranty made by the Sellers contained herein or in this Agreement (including any exhibit, schedule or of the other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b)Seller Documents;
(iib) Any any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibitcovenant, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes obligation of any of MANO, MANO I, Manischewitz or the RFG Family Entities for any taxable period ending Sellers on their part to be observed or performed on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined which are contained herein or unitary group of which in any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the TrustDocuments;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable covenant, agreement or obligation of any of the Sellers to such Seller be observed or performed after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Closing which are contained herein or in any of the other Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).Documents; and
(d) Notwithstanding anything any amounts payable to any Key Employee, as a result of, or based upon, a "change in Section 10.5(acontrol" (or similar event) of or with respect to MANO, MANO I, Manischewitz or any of their Subsidiaries relating to or based upon the contrarytransactions contemplated hereby, other than amounts payable to Xx. X. CatchotXxxxxxx Xxxxx pursuant to his Employment Agreement dated March 27, Xx. X. Catchot 1996, as amended by a letter agreement dated February 23, 1998, and except as otherwise provided hereby with respect to Xx. Xxxxxx (and their Affiliates, to Xxxxx under the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10Kroll Letter Agreement.
Appears in 1 contract
Indemnification by the Sellers. (a) From and after the Closing Date, subject Subject to the further provisions of this Article 10X, the Securityholders jointly and severally, except as provided in Section 10.2(b), Sellers shall indemnify, defend indemnify and hold harmless Calavo (including Surviving RFG EVTC and their Subsidiaries) its Affiliates, and each of their officers, its directors, shareholders, membersofficers, employees, other Representativesagents, Affiliatesrepresentatives, stockholders and controlling parties and all of their successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacitieseach an "EVTC Indemnified Person") from, and defend each of them from and against against, and will pay each EVTC Indemnified Person for any and all lossesLosses asserted against, damagesimposed upon or incurred by any such EVTC Indemnified Person, obligationsdirectly or indirectly, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating resulting from or defending arising out of or in connection with or relating to any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”following: (a) that such parties may incur based upon, arising out of, relating to any inaccuracy or resulting from:
(i) Any breach of any representation or warranty made by the Sellers in this Agreement (including any exhibit, schedule of IWT or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior Sellers contained herein or in any of the Seller Documents or IWT Documents; (b) any breach of any agreement, covenant or obligation of IWT or any of Sellers contained herein or in any of the Seller Documents or IWT Documents; (c) any liability, obligation or responsibility of IWT or any of the Sellers or which in any way relates to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding Business (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before liability for Taxes or after the Closing, that is based upon or arises withholdings) arising out of any actions or omissions made or taken by any Seller or any the operation of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or Business prior to the Closing Date; and
(vid) All payments any and all claims, actions, suits or any administrative, arbitration, governmental or other Losses made proceedings or incurred by investigations against any RFG Family Entity after EVTC Indemnified Person or in which any EVTC Indemnified Person becomes involved that relate to IWT or the Business in which the principal event giving rise thereto occurred prior to the Closing Date that are attributable to or which result from or arise out of any guarantees executed by such RFG Family Entity action or inaction prior to the Closing Date of IWT or any obligations director, officer, employee, agent, representative or subcontractor of IWT or a state of facts prior to Closing Date, including, without limitation, any Seller claim, action, suit or of any Affiliate of any Seller, including without limitations proceeding or investigation set forth on Schedule 4.5(a) and/or Schedules 4.12 and 4.13 to this Agreement; and (e) the guarantees executed by GHCA operations of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after Business following the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 1 contract
Indemnification by the Sellers. (a) From and after the Closing Date, subject Subject to the provisions of this Article 10ARTICLE XI, the Securityholders Purchaser and its officers, directors, employees, shareholders, representatives and agents shall be indemnified and held harmless by the Sellers, jointly and severally, except as provided at all times after the date of this Agreement, against and in Section 10.2(b)respect of any and all damage, shall indemnifyloss, defend and hold harmless Calavo deficiency, liability, obligation, commitment, cost or expense (including Surviving RFG the fees and their Subsidiariesexpenses of counsel) and each resulting from, or in respect of, any of their officersthe following:
(a) Any misrepresentation, directorsbreach of warranty, shareholdersor non-fulfillment of any obligation on the part of any Seller or the Companies under this Agreement, membersany document relating thereto or contained in any schedule or exhibit to this Agreement or from any misrepresentation in or omission from any certificate, employeesschedule, other Representativesagreement or instrument by any Seller or the Companies hereunder;
(b) Any and all liabilities of the Companies of any nature whether accrued, Affiliatesabsolute, successors contingent or otherwise, and permitted assigns (excluding whether known or unknown, existing at the Sellers Closing Date to the extent they serve not reflected and reserved against in any such capacities) from and against any and all lossesthe balance sheet for the six months ended June 30, damages, obligations, liabilities and other costs and expenses1997 included in the Financial Statements or not otherwise adequately disclosed in this Agreement or the schedules or exhibits thereto, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting from:
(i) All Tax liabilities of the Companies, together with any interest or penalties thereon or related thereto, through the Closing Date and any Tax liability of the Companies arising in connection with the transactions contemplated hereby. Any breach Taxes, penalties or interest attributable to the operations of the Companies payable as a result of an audit of any representation tax return shall be deemed to have accrued in the period to which such Taxes, penalties or warranty made by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b)interest are attributable;
(ii) Any breach ofAll environmental liabilities relating to any of the Companies' properties, including federal, state and local environmental liability, together with any interest or failure to performpenalties thereon or related thereto, through the Closing Date, but excluding any agreement of any RFG Family Entity or any Seller that amount for which there is contained an adequate accrual and reserve on the balance sheet for the six months ended June 30, 1997 included in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b)the Financial Statements;
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the ClosingAll claims by Medicare, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigationMedicaid, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of other third party payor relating to reimbursement for services provided by the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity Companies prior to the Closing Date of ("REIMBURSEMENT CLAIMS"). Indemnification by Seller for Reimbursement Claims shall include all costs incurred by Purchaser for such claims, including, but not limited to, applicable investigative and audit expenses, attorneys fees, reimbursement costs, and any obligations of any Seller or of any Affiliate of any Seller, including without limitations fines and penalties levied against the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.Companies; and
(viic) Any litigationAll demands, arbitrationassessments, investigation judgments, costs and reasonable legal and other expenses arising from, or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out in connection with any Claim incident to any of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries)foregoing.
(d) Notwithstanding anything All other Claims of the Purchaser shall be resolved in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10accordance with SECTION 11.4.
Appears in 1 contract
Indemnification by the Sellers. (ai) From and after the Closing Date, subject The Sellers agree to the provisions of this Article 10, the Securityholders jointly and severally, except as provided in Section 10.2(b), shall indemnify, defend indemnify and hold harmless Calavo (including Surviving RFG the Buyer and their Subsidiaries) its Affiliates and each of their officerssubsidiaries, shareholders, directors, shareholdersofficers, membersmanagers, employees, other Representatives, Affiliatesagents, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) from and against any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting from:
(i) Any breach of any representation or warranty made by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses monetary -39- 44 damages, charges, losses, deficiencies, Liabilities, obligations, costs, fees and expenses (including, without limitation, reasonable fees and disbursements of counsel incident to the enforcement of rights hereunder) (collectively "Damages") in connection with or arising from any (A) breach of any warranty or the inaccuracy of any representation of the Sellers contained in this Agreement or any certificate delivered by the Sellers pursuant hereto (other than the representations and warranties contained in Section 3(b), (c)(i), (d) or (e)) (it being understood and agreed that any such Parties may incur based uponbreach or inaccuracy shall be determined without regard to any materiality or knowledge qualification contained in any representation or warranty) or (B) Consumer Finance Law Violation Damages of the type specified in clause (ii) of the definition thereof in Section 1 above; provided, however, that the Sellers shall be required to indemnify and hold harmless the Buyer under this Section 9(a)(i) only to the extent that the aggregate amount of such indemnification exceeds $1,000,000; and provided, further, however, that the aggregate amount required to be paid by the Sellers pursuant to this Section 9(a)(i) (other than amounts payable pursuant to Section 9(a)(i)(B)) above) shall not exceed $10,000,000.
(ii) The Sellers further agree to indemnify and hold harmless the Buyer and its Affiliates and each of their subsidiaries, shareholders, directors, officers, managers, employees, agents, successors and assigns from and against any and all Damages in connection with or arising out of, relating to or resulting from (aA) any breach by of any warranty or the Seller inaccuracy of any representation contained in Section 3(b), (c)(i), (d) or (e), (B) Liabilities of Sellers and their Affiliates, other than the Assumed Liabilities, (C) breach or non-fulfillment of any covenant, agreement or other obligation of the Sellers or any of their Affiliates under this Agreement, (D) Liabilities to the extent relating to Retained Assets and (E) Consumer Finance Law Violation Damages of the type specified in clause (i) of the definition thereof in Section 1.
(iii) All of the representations and warranties of the Sellers contained in this Agreement shall survive the Closing and continue in full force and effect until the date one year after the date of the Closing, except for (A) those representations and warranties of the Sellers contained in Section 3(b), (c) (i), (d) or (e), which shall survive the Closing and continue in full force and effect forever thereafter, (B) those representations and warranties of the Sellers contained in Section 3(k)(ii) (other than in Section 3(k)(ii)(E)), which shall survive the Closing and continue in full force and effect until the date three years after the date of the Closing, and (C) those representations and warranties of the Sellers contained in Section 3(k)(ii)(E) with respect to any Financing Documents shall survive the Closing and continue in full force and effect until the later of (x) the date one year after the date of the Closing, or (y) with respect to any Financial Asset for which such claim has been made within such one-year period and Sellers have elected not to repurchase such Financial Asset pursuant to Section 7(q) forever thereafter. Notwithstanding the preceding sentence, the indemnification by the Sellers shall continue as to any Damages in connection with or arising from any breach of any warranty or the inaccuracy of any representation of which the Buyer has notified the Sellers in accordance -40- 45 with the requirements of Section 9(c) on or prior to the date such indemnification would otherwise terminate in accordance with this Section 9(a), as to which the obligation of the Sellers shall continue until the Liability of the Sellers shall have been determined pursuant to this Section 9, and the Sellers shall have reimbursed the Buyer for such Damages in accordance with this Section 9. The indemnification obligations set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(aSections 9(a)(i)(B) and 10.2(b), a Securityholder 9(a)(ii) shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG survive the Closing and their Subsidiaries)continue in full force and effect forever thereafter.
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 1 contract
Indemnification by the Sellers. (a) From and after the Closing DateClosing, the Sellers shall, (i) jointly and severally to the extent that the claim is recoverable from the Escrow Fund, (ii) subject to the provisions final sentence of this Article 10Section 8.7(a), the Securityholders jointly and severallyseverally with respect to Section 8.2(e) until the fifth anniversary of the Closing Date and (iii) severally in proportion to their Pro Rata Portions to the extent that the claim (other than a claim pursuant to Section 8.2(e) prior to the fifth anniversary of the Closing Date) is recoverable directly from the Sellers following exhaustion of the Escrow Fund and/or [* * *], except as provided in Section 10.2(b)save, shall indemnifydefend, defend indemnify and hold harmless Calavo the Buyer and its Affiliates (including Surviving RFG the Company and their Subsidiariesthe Subsidiary) and each of their officers, directors, shareholders, members, employees, other the respective Representatives, Affiliates, successors and permitted assigns (excluding of each of the Sellers to the extent they serve in any such capacities) foregoing from and against any and all lossesLosses actually incurred, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating sustained or defending suffered by any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upona result of, arising out of, of or relating to or resulting fromto:
(ia) Any any breach of any representation or warranty made by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is the Company contained in this Agreement (including other than Section 3.16) or any exhibitschedule, schedule certificate or other agreement or document delivered pursuant hereto (without, in each case, giving effect to this Agreement)any limitations or qualifications thereto, subject including materiality, Material Adverse Effect or Knowledge set forth therein or subsequent supplements or updates to Section 10.2(bthe Disclosure Schedules);
(iiib) With any breach of any covenant or agreement by the Sellers, or with respect to the agreements breaches prior to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, by the Company or the Subsidiary, in each case contained in this Agreement or any breaches schedule, certificate or defaults other document delivered pursuant hereto;
(or events giving rise c) any Transaction Expenses in excess of the Estimated Transaction Costs;
(d) the Plan Participant Agreements, the assumption by the Sellers of the Company’s obligations thereunder and the payments under this Agreement and the Paying Agent Agreement with respect thereto, including without limitation, any Actions by the Plan Participants and any Taxes related to such breaches or defaults) by any of the RFG Family Entities that occurred foregoing;
(e) the Warrants, including [* * *];
(f) Pre-Closing Taxes (except to the extent the liability therefor was reflected as a liability in the calculation of Final Closing Working Capital) and any breach of any representation or warranty in Section 3.16;
(g) any Action seeking reimbursement from or repayment by the Company of funding received from the Danish National Advanced Technology Foundation (in Danish “Højteknologifonden”) under the funding agreement of 26 February 2009 owing to actions or omissions by the Company, the Subsidiary, the Sellers or any of their respective Affiliates or Representatives prior to the Closing;
(ivh) Any litigation, arbitration, investigation or other claim or legal proceeding the Legal Matters (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreementas defined in Schedule 2.5(a)(iii)), whether brought before or after but only to the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any extent in excess of the RFG Family Entities prior to aggregate amount actually recovered by the ClosingCompany from the opposing parties in connection therewith;
(Ai) All the amount by which the Company’s refund of withholding Taxes of any of from the RFG Family Entities for any taxable German Taxing Authorities received within the 120 day period ending on or prior to following the Closing DateDate which are based on royalty payments received from Infineon Technologies AG (or Lantiq, the purchaser of Infineon’s Wireline business) under a licensing agreement between the Company and Infineon Technologies AG falls short of DKK 750,000;
(Bj) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Datecertain legal matters set forth in Schedule 8.2(j); and
(vik) All payments the termination by the landlord of that certain Lease Agreement, between the Company and other Losses made or incurred by any RFG Family Entity after Arbejdmarkedets tillægspension / ATP Ejendomme A/S, dated February 9, 2005 (as amended) (the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior “Current Lease Agreement”), but only to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or extent such termination arises out of the Roll Up Transaction or any actions or omissions made or taken failure to obtain such landlord’s consent under the Current Lease Agreement to the transactions contemplated by this Agreement, and with such Losses to be measured as follows: (i) the costs and expenses incurred by the Trust;
Company and/or the Buyer in connection with moving the Company’s headquarters to a reasonably comparable facility, plus (bii) From and after an amount equal to (x) the Closing and subject to rent payable at such facility over the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns period from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller commencement of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason lease of such other Sellerfacility until October 1, 2015, less (y) the rent payable at the Company’s position as an officercurrent facility over the period from the commencement of the lease of such reasonably comparable facility until October 1, director2015, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything provided that in Section 10.5(a) to no event can the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations Losses pursuant to this Article 10Section 8.2(k) be negative.
Appears in 1 contract
Samples: Stock Purchase Agreement (Applied Micro Circuits Corp)
Indemnification by the Sellers. (a) From and after the Closing Date, subject Subject to the provisions of limitations set forth in this Article 10VII, the Securityholders Sellers (in the case of claims made under this Section 7.2, the “Indemnifying Party”) shall, jointly and severally, except as provided in Section 10.2(b), shall indemnify, defend and hold harmless Calavo (including Surviving RFG the Buyers and their Subsidiaries) and each of their stockholders, managers, members, officers, directors, shareholdersagents, membersattorneys and employees (hereinafter “Buyer Indemnified Parties” and, employeesin the case of claims made under this Section 7.2, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities“Indemnified Party”) from and against any and all actual losses, claims, Liabilities, debts, damages, obligationsfines, liabilities and other penalties, costs and expenses, (in each case including, without limitation, settlement costsreasonable out-of-pocket expenses (including, judgmentswithout limitation, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actionsof counsel)) that they incur (collectively, claims and proceedings (all of the foregoing being collectively referred to herein as “LossesDamages”) that such parties may incur based upon, arising out as a result of, relating to or resulting from:
(ia) Any the breach of any representation or warranty made by of the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including or in any exhibit, schedule or other agreement or document delivered pursuant to this Related Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out material breach of, relating to default under or resulting from (a) nonfulfillment of, any breach by the Seller covenant, obligation or agreement of the representations and warranties set forth in Article 4Sellers under this Agreement, which is not cured within thirty (b30) any unpaid Taxes days from the Sellers’ receipt of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and notice thereof;
(c) any willful and material breach by JR of her obligations under the Seller of any covenants applicable to such Seller after JR Employment Agreement during the Closing.
Initial Term (c) Notwithstanding Section 10.2(a) and 10.2(bas defined in the JR Employment Agreement), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).;
(d) Notwithstanding anything in Section 10.5(a) any Liabilities related to the contrarysale or distribution of Inventory pursuant to Section 6.11;
(e) the Excluded Assets;
(f) the Excluded Liabilities; and
(g) the willful failure of JR to comply in any material respect with the Buyer QVC Agreement during the twenty-four (24) month period following the Closing, Xx. X. Catchotincluding the willful failure by JR to make at least eighty percent (80%) of the Appearances required to be made by JR under the Buyer QVC Agreement during the Prime Hours, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, except to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable such failure follows the date on which JR’s employment with XCel is terminated for any obligations reason other than “Cause” (as defined in the JR Employment Agreement). Solely for purposes of Liberty Fresh Foodsthis Section 7.2(g), LLC, if and “Damages” shall include any revenues lost as a direct result of such failure by JR to comply with the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10Buyer QVC Agreement.
Appears in 1 contract
Indemnification by the Sellers. The Sellers agree to indemnify and ------------------------------ hold harmless JRT and/or MTT against and in respect to all damages (aas hereinafter defined) From and after the Closing Datein excess of $500.00. Damages, subject to the provisions of this Article 10as used herein shall include any claim, the Securityholders jointly and severallysalary, except as provided in Section 10.2(bwage, action, tax, demand, loss, cost, expense, liability (joint or several), shall indemnifypenalty, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) from and against any and all losses, damages, obligations, liabilities and other costs and expensesdamage, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ counsel fees and other costs and expenses for reasonably incurred in investigating or defending attempting to avoid same or in opposition to the imposition thereof, or in enforcing this indemnity, resulting to JRT and/or MTT from any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting from:
(i) Any breach of any inaccurate representation or warranty made by or on behalf of the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject breach of any of the warranties made by or on behalf of the Sellers in or pursuant to Section 10.2(b);
this Agreement, or breach or default in the performance by the Sellers of any of the obligations to be performed by them hereunder. Hereunder, JRT shall determine whether JRT, MTT or both JRT and MTT are entitled to be indemnified and such determination shall be binding on the Sellers. Notwithstanding the scope of the Sellers' representations and warranties herein, or of any individual representation or warranty, or any disclosure to JRT herein or pursuant hereto, or the definition of damages contained in the preceding sentence, or JRT's knowledge of any fact or facts at or prior to the Closing, damages shall also include: all debts, liabilities, and obligations of any nature whatsoever (whether absolute, accrued, contingent, or otherwise, and whether due or to become due) of MTT, as of the date hereof not reflected in the Financial Statement or any other exhibit furnished hereunder, whether known or unknown by the Sellers; all claims, actions, demands, losses, costs, expenses, and liabilities resulting from any litigation from causes of action arising prior to the Closing hereunder involving MTT or any owners thereof other than the Sellers, whether or not disclosed to JRT; all claims, actions, demands, losses, costs, expenses, liabilities and penalties resulting from (i) MTT's infringement or claimed infringement upon or acting adversely to the rights or claimed rights of any person under or in respect to any copyrights, trademarks, trademark rights, patents, patent rights or patent licenses; or (ii) Any breach ofany claim or pending or threatened action with respect to the matters described in clause (i); all claims, actions, demands, losses, costs, expenses, liabilities or penalties resulting from MTT's failure in any respect to perform any obligation required by it to be performed at or prior to the effective date hereof or at or prior to the Closing, or failure to perform, any agreement by reason of any RFG Family Entity default of MTT, at the effective date hereof or at the Closing, under any Seller that of the contracts, agreements, leases, documents, or other commitments to which it is a party or otherwise bound or affected; and all losses, costs, and expenses (including without limitation all fees and disbursements of counsel) relating to damages. Khan shall reimburse and/or pay in the form of up to 10,000,000 shares of JRT Common Stock on behalf of JRT and/or MTT on demand for any payment made or required to be made by JRT and/or MTT at any time after the Closing based upon the judgment of any court of competent jurisdiction or pursuant to a bona fide compromise or settlement of claims, demands or actions, in respect to the damages to which the foregoing indemnity relates. JRT shall give, or JRT shall cause MTT to give Khan written notice within 30 days after notification of any litigation threatened or instituted against MTT which might constitute the basis of a claim for indemnity by JRT and/or MTT against Khan. Notwithstanding anything contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchotthe right to indemnification described in this paragraph shall expire one year after the Closing hereunder, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliatesexcept in the case of the proven fraud by the Sellers hereunder as determined by a court of competent jurisdiction in connection with any such claim for indemnification, in which event such right to indemnification shall expire one year after the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations discovery of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10such fraud.
Appears in 1 contract
Samples: LLC Interest Purchase Agreement (Jackson Rivers Co)
Indemnification by the Sellers. (a) From and after the Closing Date, subject Subject to the provisions terms, conditions and limitations of this Article 10VII, following the Closing, the Securityholders jointly Sellers shall, on a several (and severally, except as provided in Section 10.2(bnot joint and several) basis (based on their relative Pro Rata Portion), shall indemnifyindemnify and defend the Purchaser and its Affiliates (including, defend and hold harmless Calavo (including Surviving RFG after the Closing, the Company), and their Subsidiaries) and each of their respective successors, assigns, officers, directors, shareholdersstockholders, members, employeesemployees and agents (collectively, other Representativesthe “Purchaser Indemnified Persons” and each, Affiliatesa “Purchaser Indemnified Person”) against, successors and permitted assigns (excluding the Sellers to the extent they serve in hold them harmless from, any Loss suffered or incurred by any such capacities) Purchaser Indemnified Person, or to which such Purchaser Indemnified Person may be or become subject, arising or resulting from and against any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting from:
(ia) Any any breach of any representation or warranty made by the Sellers of any Seller contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iib) Any any breach of, or failure to perform, any agreement of any RFG Family Entity representation or any Seller that is warranty of the Company contained in this Agreement (including or in any exhibit, schedule or other agreement or document certificate delivered pursuant to this Agreement), subject to Section 10.2(b)Purchaser hereunder;
(iiic) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as any breach of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) covenant by any Seller or the Sellers’ Representative contained in this Agreement;
(d) any breach of any covenant by the RFG Family Entities that occurred Company (prior to the Closing) contained in this Agreement;
(ive) Any litigation, arbitration, investigation any Closing Indebtedness or other claim or legal proceeding (including, without limitation, any claims and legal proceedings Closing Transaction Expenses that are listed on a schedule to this Agreement), whether brought before or after not specifically included in the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any calculation of the RFG Family Entities prior to the ClosingAggregate Consideration;
(Af) All any inaccuracy in the Consideration Spreadsheet or the distribution of any portion of the Aggregate Consideration by the Purchaser in the manner set forth in the Consideration Spreadsheet or as otherwise directed by the Sellers’ Representative; and
(g) any Taxes of any of the RFG Family Entities Company or the Sellers for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after before the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to or for the portion of the Straddle Period through the end of the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foodsnot included as a current liability in the calculation of the Net Working Capital Amount, LLCas finally determined) agree to be jointly and severally liable for any obligations 50% of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10Transfer Taxes.
Appears in 1 contract
Indemnification by the Sellers. (a) From and after the Closing Date, subject Subject to the provisions of this Article 10XI, the Securityholders jointly Purchaser and severally, except as provided in Section 10.2(b), shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their its officers, directors, employees, shareholders, membersrepresentatives and agents shall be indemnified and held harmless by the Sellers, employeesat all times after the date of this Agreement, against and in respect of any and all damage, loss, deficiency, liability, obligation, commitment, cost or expense (including the fees and expenses of counsel) resulting from, or in respect of, any of the following:
(a) Any misrepresentation, breach of warranty, or non-fulfillment of any obligation on the part of the Sellers or Gulf Coast under this Agreement, any document relating thereto or contained in any schedule or exhibit to this Agreement or from any misrepresentation in or omission from any certificate, schedule, other Representatives, Affiliates, successors and permitted assigns (excluding agreement or instrument by the Sellers or Gulf Coast hereunder;
(b) Any and all liabilities of Gulf Coast of any nature whether accrued, absolute, contingent or otherwise, and whether known or unknown, existing at the Closing Date to the extent they serve not reflected and reserved against in any such capacities) from the statement of assets and against any and all lossesliabilities for the six months ended June 30, damages, obligations, liabilities and other costs and expenses1996 included in the Financial Statements or not otherwise adequately disclosed in this Agreement or the schedules or exhibits thereto, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting from:
(i) All Tax liabilities of Gulf Coast, together with any interest or penalties thereon or related thereto, through the Closing Date and any Tax liability of Gulf Coast arising in connection with the transactions contemplated hereby. Any breach Taxes, penalties or interest attributable to the operations of Gulf Coast payable as a result of an audit of any representation tax return shall be deemed to have accrued in the period to which such Taxes, penalties or warranty made by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b)interest are attributable;
(ii) Any breach ofAll environmental liabilities relating to any of Gulf Coast's properties, including federal, state and local environmental liability, together with any interest or failure to performpenalties thereon or related thereto, through the Closing Date, but excluding any agreement amount for which there is an adequate accrual and reserve on the statement of any RFG Family Entity or any Seller that is contained assets and liabilities for the six months ended June 30, 1996 included in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b)the Financial Statements;
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the ClosingAll claims by Medicare, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigationMedicaid, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior other third party payor relating to the Closing;
(A) All Taxes of any of the RFG Family Entities reimbursement for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, services provided by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity Gulf Coast prior to the Closing Date of ("Reimbursement Claims"). Indemnification by Sellers for Reimbursement Claims shall include all costs incurred by Purchaser for such claims, including, but not limited to, applicable investigative and audit expenses, attorneys fees, reimbursement costs, and any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank fines and EDF Resource Capital, Inc.penalties levied against Gulf Coast; and
(viic) Any litigationAll demands, arbitrationassessments, investigation judgments, costs and reasonable legal and other expenses arising from, or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out in connection with any Claim incident to any of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xxforegoing. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.- 45 - 52
Appears in 1 contract
Indemnification by the Sellers. (a) From and after Following the Closing Date, subject to the provisions of this Article 10Closing, the Securityholders Sellers shall, jointly and severally, except as provided in Section 10.2(b)save, shall indemnifydefend, defend indemnify and hold harmless Calavo the Buyer and its Affiliates (including Surviving RFG the Targets and their the Subsidiaries) and each of their ), officers, directors, shareholders, members, employees, other Representatives, Affiliatesagents, successors and permitted assigns (excluding collectively, the Sellers to the extent they serve in any such capacities"Buyer Indemnified Parties") from and against any and all losses, damages, obligationsliabilities, liabilities and other costs and expensesdeficiencies, includingclaims, without limitationinterest, settlement costsawards, judgments, interestpenalties, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating (including reasonable attorneys' fees, costs and other out-of-pocket expenses incurred in investigating, preparing or defending any Actionsthe foregoing) (hereinafter collectively, claims and proceedings (all of "Losses") to the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, extent arising out of, relating to of or resulting from:
(ia) Any any breach of any representation or warranty made by a Seller or the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement or any Ancillary Agreement or any certificate delivered pursuant hereto (including for purposes of determining the amount of any exhibit, schedule Losses (but not for determining if a breach of any representation or other agreement or document delivered warranty has occurred) pursuant to this AgreementSection 9.2(a), subject to Section 10.2(ball representations and warranties shall be read without any "material", "materiality" and "material adverse effect" qualifications);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any covenant or agreement by a Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and the Sellers contained in this Agreement; and
(c) any breach by indemnification or other obligation of the Seller Targets or the Subsidiaries arising under the Extell Purchase Agreement and, any other residual liability any of the Targets or Subsidiaries may have as a result of owning or operating the property exchanged pursuant to the Extell Purchase Agreement or any covenants applicable other property any of the Targets and the Subsidiaries may have owned or leased prior to such Seller after purchasing the Closing.
Properties. For the avoidance of doubt, nothing in this paragraph (c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) supersede or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member modify the Indemnification Agreement or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to any way affect the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its parties' obligations pursuant to this Article 10the Indemnification Agreement.
Appears in 1 contract
Indemnification by the Sellers. (a) From and after the Closing Date, subject Subject to the provisions of this Article 10, the Securityholders jointly and severally, except as provided in Section 10.2(b), shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) from and against any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting from:
(i) Any breach of any representation or warranty made by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions terms of this Article 10, each Seller of Xxxx X. Xxxxx and Xxxxxx X. Xxxxxxxxxxx (collectively, the “Principal Members”) agrees jointly and severally, and each of Xxx X. Xxxxxxx, Xxxxxx Xxxxxxx, Xx. and Xxxx Xxxxx (collectively, the “Minority Members”) agrees severally (and not jointly) shall indemnify, defend to indemnify and hold harmless Calavo (including Surviving RFG the Purchaser and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, its Affiliates, successors and permitted assigns including without limitation the Company (the “Purchaser Indemnified Parties”) harmless from and against all claims, liabilities, obligations, costs, damages, losses and expenses (including reasonable attorneys’ fees and costs of investigation) of any and all Losses that such Parties may incur based uponnature (collectively, “Losses”) arising out of, of or relating to or resulting from (ai) any breach by the Seller or violation of the representations and or warranties of the Sellers (other than those set forth in Article 42) or the Company set forth in this Agreement (including the schedules), (ii) any breach or violation of the covenants or agreements of the Company set forth in this Agreement required to be performed prior to or at the Closing, (iii) any breach or violation of covenants or agreements of the Sellers set forth in this Agreement, (iv) the failure of any portion of the Indebtedness or the Sellers’ Expenses to be paid at or prior to Closing (other than such Indebtedness for which the Purchaser is to make payment pursuant to Section 1.2(c)), (v) any Lien on any property or assets of the Company after the Closing as a result of matters existing or relating to any period prior to the Closing, other than Permitted Liens, (vi) any litigation, suit, proceeding, arbitration or investigation with respect to the affairs of the Company prior to the Closing or (vii) any failure by Holdings to pay in full and satisfy all obligations to employees of the Company (including all payments and obligations to be made or performed at Closing or at anytime after Closing) under the Sale Bonus Plans. The Sellers shall not have a right of contribution, or any other means of recovery, from the Company for the Sellers’ indemnification obligations hereunder.
(b) any unpaid Taxes Each Member shall severally, but not jointly, indemnify and hold the Purchaser Indemnified Parties harmless from and against all Losses arising out of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) relating to any breach by or violation of the Seller representations or warranties of any covenants applicable to such Seller after Member in Article 2 of this Agreement (including the Closingschedules).
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) Subject to the contraryother limitations set forth herein, Xx. X. Catchotthe indemnification and hold harmless obligations of the Principal Members and the Minority Members with respect to Losses of the Purchaser Indemnified Parties pursuant to Section 10.3(a) shall be limited to each such Member’s Pro Rata Share (as defined below) thereof; provided, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliateshowever, that to the extent their Affiliates receive that any payments Purchaser Indemnified Party is entitled to indemnification for Losses pursuant to Section 10.3(a) and such indemnification is not available for any reason from Liberty Fresh Foodsany Member, LLC) agree to each of the Principal Members shall be jointly and severally liable for any obligations the full amount of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10such Losses.
Appears in 1 contract
Samples: Securities Purchase Agreement (L-1 Identity Solutions, Inc.)
Indemnification by the Sellers. (a) From and after the Closing Date, subject to the provisions of this Article 10applicable Closing, the Securityholders jointly and severally, except as provided in Section 10.2(b), Sellers shall indemnify, defend and hold harmless Calavo (including Surviving RFG the Buyer and its Affiliates and their Subsidiaries) and each of their respective officers, directors, shareholders, members, employees, other Representativesagents and representatives (collectively, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) from and against any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “LossesBuyer Indemnified Parties”) against, and reimburse any Buyer Indemnified Party for, all Losses that such parties Buyer Indemnified Party may incur based uponat any time suffer or incur, arising out ofor become subject to, relating to as a result of or resulting fromin connection with:
(i) Any the inaccuracy or breach of any representation representations or warranty warranties made by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered in the certificates furnished by the Sellers pursuant to this AgreementSections 2.05(a)(iv), subject to Section 10.2(b2.05(b)(iv), 2.05(c)(iv), 7.01(c)(i), 7.02(c)(i) and 7.03(c)(i);
(ii) Any any breach of, or failure by the Sellers to perform, perform any agreement of any RFG Family Entity their covenants or any Seller that is obligations contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);; or
(iii) With respect any Excluded Liability (including the failure of the Sellers to perform or in due course pay and discharge any Excluded Liability).
(b) Notwithstanding any other provision of this Agreement to the agreements contrary, (i) the Sellers shall not be required to which Surviving RFG indemnify, defend or its Subsidiaries is a party hold harmless any Buyer Indemnified Party against, or is otherwise bound as reimburse any Buyer Indemnified Party for, any Losses pursuant to Section 9.02(a)(i) until the aggregate amount of the ClosingBuyer Indemnified Parties’ Losses exceeds a dollar amount equal to the Deductible Amount, any breaches or defaults (or events giving rise to such breaches or defaults) by any after which the Sellers shall be obligated for all Losses of the RFG Family Entities that occurred prior Buyer Indemnified Parties pursuant to Section 9.02(a)(i) in excess of the Deductible Amount up to a dollar amount equal to the Closing;
(iv) Any litigationCap Amount; provided, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closinghowever, that is based upon or arises out of the limitations on indemnification set forth in this Section 9.02(b)(i) shall not apply to any actions or omissions made or taken by any Seller or any indemnification claim brought as a result of the RFG Family Entities prior to the Closing;
(A) All Taxes inaccuracy or breach of any of the RFG Family Entities for any taxable period ending on or prior to Fundamental Representations; (ii) the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any cumulative indemnification obligation of the RFG Family Entities is or was a member on or prior to Sellers under Section 9.02(a)(i) shall in no event exceed the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign LawPurchase Price; and (Ciii) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA indemnification obligation of the obligations Sellers under Section 9.02(a)(i) with respect to a breach of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
Section 3.22 (viiTax Matters) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and shall not be subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the ClosingDeductible Amount.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 1 contract
Samples: Asset Purchase Agreement (Coca Cola Bottling Co Consolidated /De/)
Indemnification by the Sellers. (a) From Subject to and to the extent provided in this Section 13, from and after the Closing Date, subject to the provisions of this Article 10Closing, the Securityholders jointly and severallySellers shall, except as provided severally in Section 10.2(b)proportion to their former percentage ownership of the Interests, shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) Purchaser’s Indemnified Persons, and each of their officersthem, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) from and against any and all lossesLosses incurred or suffered by Purchaser’s Indemnified Persons, damagesdirectly or indirectly, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out a result of, relating to or resulting arising from:
(ia) Any misrepresentation or breach of any a representation or warranty made by the Sellers Company, the Active Subsidiaries or any Seller herein, provided, however, that any indemnification due the Purchaser as a result of a misrepresentation or breach of a representation or warranty made in Section 3.16 hereof as it relates to the Windermere Property and any liability resulting from environmental conditions existing thereon shall be limited as provided in Section 13.1(e) (below).
(b) The breach of any covenant, agreement or other obligation of the Company, its Subsidiaries or any Seller set forth in this Agreement (including or in any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b)Closing Document;
(iic) Any breach of, The operation or failure to perform, any agreement conduct of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to Business of the agreements to which Surviving RFG or Company and its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything The Program and the termination of such Program;
(e) Any Liability arising under any Environmental Law as it relates to the Windermere Property, but only to the same extent provided for by “Landlord” to “Tenant” in Section 10.5(a20.2.2 of the Affiliate Leases attached hereto as Exhibit E;
(f) to Any obligation or Liability of the contraryCompany or any Subsidiary not disclosed or accrued in the Financial Statements attached as Schedule 3.9 hereto, Xx. X. Catchotor any Schedule hereto;
(g) The reorganization and/or account changes implemented by the Company and/or its Subsidiaries in the first quarter of 2005, Xx. X. Catchot including without limitation, any claims, contract price adjustments, damages, fines, penalties and Xx. Xxxxxx (and their AffiliatesLosses suffered or incurred by the Company, to its Subsidiaries or the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10Purchaser in connection therewith.
Appears in 1 contract
Indemnification by the Sellers. (a) From Upon the terms and after the Closing Date, subject to the provisions conditions of this Article 10XII, each of the Securityholders jointly and severally, except as provided in Section 10.2(b), Sellers shall indemnify, defend and hold harmless Calavo (including Surviving RFG the Business, Buyer and their Subsidiaries) and each of their officers, its directors, shareholders, membersofficers, employees, other Representativesagents, Affiliatesstockholders, successors and permitted assigns representatives (excluding collectively, the Sellers to the extent they serve in any such capacities"Buyer Indemnitees") from and against any and all lossesdamage, damagesloss, obligationsdeficiency, liabilities and other costs and expensesliability, includingobligation, without limitationcommitment, settlement costsclaim (as defined in Section 101 of the Bankruptcy Code), judgments, interest, penalties and cost or expense (including the reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating of legal counsel) whatsoever, whether known or defending unknown, fixed, liquidated, contingent or otherwise, resulting from, or in respect of, any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting fromfollowing:
(ia) Any Except as set forth in Section 12.1, any breach of any a representation or warranty made by warranty, or non-fulfillment of any obligation on the part of any of the Sellers under this Agreement, any document relating hereto or thereto or contained in this Agreement (including any exhibit, schedule or other agreement or document instrument delivered by any of the Sellers pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;.
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any Any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the ClosingExcluded Liabilities.
(c) Notwithstanding Section 10.2(a) and 10.2(b)Any Claim against Buyer made by any shareholder, a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member employee or employee agent of Calavo (including Surviving RFG and any of the Sellers or their Subsidiaries based upon Buyer's relationship with the Sellers or it Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to Liabilities arising out of the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliatestransactions contemplated by this Agreement under any bulk transfer laws, to the extent their Affiliates receive that the Claim is shown not to have been known or, as a result of Sellers' failure to comply with Section 4.10 of this Agreement, the third party asserting the Claim is deemed not to have received actual or constructive notice of this Agreement or of the Sale Motion and Asset Sale Order and the hearings therefore, including without limitation, in the event of a known creditor, the Sellers' actual notice to such third party was untimely or was not delivered.
(e) Any Claim asserted by a third party arising out of or related to Buyer's acquisition of the Business other than the Assumed Liabilities.
(f) Any successor or vicarious liability of any payments from Liberty Fresh Foodsof the Sellers, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foodsthe Claim is shown not to have been known or, LLC defaults on its obligations pursuant as a result of Sellers' failure to this Article 10.comply with
Appears in 1 contract
Indemnification by the Sellers. (a) From and after the Closing Date, subject Subject to the provisions of this Article 10VII, the Securityholders jointly and severally, except as provided in Section 10.2(b), each Seller shall severally indemnify, defend and hold harmless Calavo (including Surviving RFG the Buyer, any parent, subsidiary or affiliate of the Buyer, and their Subsidiaries) and each any director, officer, employee, agent or advisor of any of them, or any of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, respective successors and permitted or assigns (excluding the Sellers to the extent they serve in any such capacities) a "Buyer Indemnified Party"), from and against any and all lossesLosses asserted against, damagesresulting to, obligationsimposed upon or incurred by any Buyer Indemnified Party, liabilities and other costs and expensesdirectly or indirectly, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating by reason of or defending resulting from the breach of or any Actions, claims and proceedings (all inaccuracy in any of the foregoing being collectively referred representations and warranties of such Seller contained in or made pursuant to herein as “Losses”Article II hereof, or any facts or circumstances constituting such breach or inaccuracy.
(b) that Subject to the provisions of this Article VII, each Management Seller shall jointly and severally indemnify, defend and hold harmless each Buyer Indemnified Party from and against any and all Losses asserted against, resulting to, imposed upon or incurred by such parties may incur based uponBuyer Indemnified Party, arising out ofdirectly or indirectly, relating to by reason of or resulting from:
(i) Any the breach of or any representation or warranty made by inaccuracy in any of the representations and warranties of the Sellers or CCI contained in or made pursuant to any Section of this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreementthan a Section in Article II hereof), subject to Section 10.2(b)or any facts or circumstances constituting such breach or inaccuracy;
(ii) Any the breach of, or failure to perform, nonperformance of any covenant or agreement of any RFG Family Entity the Sellers or any Seller that is CCI contained in this Agreement (including any exhibit, schedule or other agreement or document delivered made pursuant to this Agreement), subject to Section 10.2(b)Agreement or any facts or circumstances constituting such breach or nonperformance;
(iii) With respect any liabilities relating to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the ClosingExcluded Assets;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding any unrecorded expenses and liabilities (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out net of any actions or omissions made or taken by any Seller or any unrecorded income and Current Assets) of the RFG Family Entities CCI relating to occurrences prior to the ClosingEffective Time;
(Av) All Taxes of any of the RFG Family Entities litigation or legal claims against CCI or for any taxable period ending on which CCI is or may be liable relating to occurrences prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing DateEffective Time; and
(vi) All payments all liability and other Losses made remediation costs imposed by Environmental Laws or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date Governmental Authority in respect of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the TrustEnvironmental Laws;
(bc) From and after the Closing and subject Subject to the provisions of this Article 10VII, each Seller (other than the Management Sellers and Bertxxx Xxxxxx) xxd Berthel Fishxx (xxly with respect to clauses (ii) and (v) below), shall severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns Buyer Indemnified Party from and against any and all Losses that asserted against, resulting to, imposed upon or incurred by such Parties may incur based uponBuyer Indemnified Party, arising out ofdirectly or indirectly, relating to by reason of or resulting from from:
(ai) the breach of or any breach by the Seller inaccuracy in any of the representations and warranties set forth of such Seller contained in or made pursuant to any Section of this Agreement (other than a Section in Article 4II hereof), or any facts or circumstances constituting such breach or inaccuracy;
(bii) any unpaid Taxes the breach or nonperformance of any Seller under Treasury Regulation Section 1.1502-6 (covenant or any similar provision agreement of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) contained in or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations made pursuant to this Article 10Agreement or any facts or circumstances constituting such breach or nonperformance;
(iii) its Pro Rata portion of any liabilities relating to the Excluded Assets;
(iv) its Pro Rata portion of any unrecorded expenses and liabilities (net of any unrecorded income and Current Assets) of CCI relating to occurrences prior to the Effective Time;
(v) its Pro Rata portion of any litigation or legal claims against CCI or for which CCI is or may be liable relating to occurrences prior to the Effective Time; and
(vi) its Pro Rata portion of all liabilities and remediation costs imposed by Environmental Laws or by any Governmental Authority in respect of Environmental Laws.
Appears in 1 contract
Indemnification by the Sellers. (a) From Subject to the limitations set forth in this Article X, from and after the Closing Date, subject to the provisions of this Article 10Applicable Closing, the Securityholders Sellers shall, jointly and severally, except as provided in Section 10.2(b), shall indemnify, defend and hold harmless Calavo (including Surviving RFG Purchaser, its Affiliates and their Subsidiaries) and each of their respective officers, directors, shareholdersemployees and agents (collectively, members, employees, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities“Purchaser Indemnified Parties”) from and against any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating Covered Losses incurred by such Purchaser Indemnified Party as a result of or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting from:
(ia) Any any breach or inaccuracy of any representation or warranty made of the Sellers contained in Article IV of this Agreement or in the certificates provided by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this AgreementSection 8.02(a) and Section 8.02(b), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From any failure by the Sellers to (i) comply with any covenant or agreement in this Agreement which is to be performed by the Sellers before the Applicable Closing and (ii) comply with any covenant or agreement in this Agreement which is to be performed by the Sellers after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and Applicable Closing;
(c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, Loss Sharing Claims to the extent their Affiliates receive necessary so that the Sellers (and the other Seller Indemnified Parties) shall bear, whether directly or through the indemnification provided in this Section 10.02(c), (i) first, seventy-five percent (75%) of any payments from Liberty Fresh Foods, LLCsuch Covered Losses until the aggregate amount paid by Sellers (and the other Seller Indemnified Parties) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.Section 10.02(c) and Purchaser (and the other Purchaser Indemnified Parties) pursuant to Section 10.03(c) is equal to fifty percent (50%) of the Shared Loss Cap and (ii) thereafter, twenty-five percent (25%) of any such Covered Losses until the aggregate amount paid by Sellers (and the other Seller Indemnified Parties) pursuant to this Section 10.02(c) and Purchaser (and the other Purchaser Indemnified Parties) pursuant to Section 10.03(c) is equal to the Shared Loss Cap; and
Appears in 1 contract
Samples: Asset Purchase Agreement
Indemnification by the Sellers. (a) From and after the Closing Date, subject Subject to the provisions terms and conditions of this Article 106, the Securityholders jointly and severally, except as provided in Section 10.2(b), shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) from and against any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting from:
(i) Any breach of any representation or warranty made by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of following the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any each of the RFG Family Entities that occurred prior to Sellers (without any right of contribution from the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointlyCompany) shall indemnify, defend and hold harmless Calavo (including Surviving RFG Purchaser, its Affiliates, the Company and their Subsidiaries) and each of their respective successors, assigns, officers, directors, shareholders, members, employees, other Representativesrepresentatives and Agents (collectively, Affiliatesthe “Purchaser Indemnified Persons”), successors and permitted assigns from and against against, and shall promptly pay or reimburse each Purchaser Indemnified Person for, any and all Losses suffered or incurred by any such Purchaser Indemnified Person (including any Losses suffered or incurred after the end of the applicable survival period, provided that such Parties may incur based upona claim is made prior to the end of the applicable survival period in accordance with the terms of this Agreement), arising out of, relating to or resulting from or based upon (ai) any breach of any representation or warranty contained in Article 4 hereof or any other representation or warranty made by the Seller Sellers or the Company in this Agreement or any other Transaction Document, (ii) the breach of any covenant of the representations and warranties set forth Sellers or the Company contained in Article 45 hereof or any other covenant of the Sellers or the Company in this Agreement or any other Transaction Document, (biii) any unpaid and all Transaction Expenses or Indebtedness paid by the Company after the Closing to the extent not actually deducted in calculating the Purchase Price, (iv) Pre-Closing Taxes of the Company (net of Taxes taken into account in the determination of the Closing Working Capital Amount), (vi) any Seller under Treasury Regulation Section 1.1502-6 (Taxes imposed on the Company, including successors thereof, or any similar provision direct or indirect owner of state, local or foreign law), as a transferee the Company or successor, by contract, arising as a result of or otherwise in connection with the Transactions and (cviii) any breach Loss as a result of, in connection with or by the Seller virtue of any covenants applicable to such Seller after claims that the Closing.
Purchase Price was not properly calculated or properly allocated among the Sellers (c) Notwithstanding Section 10.2(a) and 10.2(bincluding, but not limited to, any claims that the Purchase Price was not distributed in accordance with any of the Company Organizational Documents), a Securityholder . The foregoing indemnity obligations of the Sellers shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx several only (and their Affiliates, not joint) with respect to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree Xxxxx Xxxxxx and joint and several with respect to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10Xxxx Xxxxxx.
Appears in 1 contract
Indemnification by the Sellers. (a) From Subject to the provisions of this Article X and except with respect to indemnification for Taxes (which shall be governed exclusively by Article VII and Section 5.17(b)), effective as of and after the Closing Date, subject to Parent and the provisions of this Article 10Sellers, the Securityholders jointly and severally, except as provided in Section 10.2(b), shall indemnify, defend and hold harmless Calavo Purchaser and its Affiliates (including Surviving RFG including, following the Closing, the Transferred Companies and their respective Subsidiaries) and each of their respective stockholders, members, partners, managers, officers, directors, shareholders, members, employees, other Representativesrepresentatives, Affiliatescontrolling Persons, counsel, agents, successors and permitted assigns (excluding collectively, the Sellers to the extent they serve in any such capacities) from and against any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “LossesPurchaser Indemnified Parties”) that such parties may incur based upon, arising out of, relating to or resulting from:
(i) Any breach of any representation or warranty made by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based uponincurred or suffered by any of the Purchaser Indemnified Parties, to the extent arising out of, of or relating to or resulting from (ai) any breach by of any representation or warranty of Parent or the Seller Sellers contained in this Agreement or any Foreign Acquisition Agreement or any breach of the certification of Parent in the certificate delivered pursuant to Section 8.2(c); (ii) any breach of any covenant or agreement of Parent or the Sellers contained in this Agreement or any Foreign Acquisition Agreement; (iii) any business (including the conduct and activities of any business) of Parent or its Affiliates (which, for the avoidance of doubt, shall include the eMe Business), other than for Losses arising out of or relating to the Business (for the avoidance of doubt, legacy Liabilities of the Business, including arising out of discontinued or divested businesses, are deemed to be Liabilities of the Business); and (iv) any of the matters listed on Schedule 10.2 of the Purchaser Disclosure Schedule.
(b) Notwithstanding any other provision to the contrary:
(1) Parent and the Sellers shall not be required to indemnify, defend or hold harmless any Purchaser Indemnified Party against, or reimburse any Purchaser Indemnified Party for, any Losses pursuant to Section 10.2(a)(i), (A) to the extent such Losses were included as “Current Liabilities” in Working Capital and reflected or reserved for on the Final Working Capital and Net Indebtedness Statement; (B) unless such claim or series of related claims involve Losses in excess of $100,000 (the “De Minimis Amount”) and if such Losses do not exceed the De Minimis Amount, such Losses shall not be applied to or considered for purposes of calculating the aggregate amount of the Purchaser Indemnified Parties’ Losses under this Section 10.2(b)(1); or (C) until the aggregate amount of Losses for which the Purchaser Indemnified Parties are entitled to indemnification under Section 10.2(a)(i) exceeds $24,080,000 (the “Deductible”), after which the Sellers shall be obligated for all the Purchaser Indemnified Parties’ Losses under Section 10.2(a)(i) in excess of the Deductible, subject to Sections 10.2(b)(1)(A) and (B) and Section 10.2(b)(2); and
(2) the cumulative indemnification obligation of the Sellers under Section 10.2(a)(i) shall in no event exceed $258,000,000 (the “Cap”); provided, that neither the De Minimis Amount nor the Deductible nor the Cap shall apply to any claim involving Losses resulting from fraud or arising out of or relating to a breach of the representations and warranties set forth in Article 4, Section 3.1 (bOrganization and Qualification; Subsidiaries) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign lawexcept for the last sentence thereof), as a transferee or successor, by contract, or otherwise and Section 3.2 (c) any breach by Capitalization of the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(bTransferred Companies), a Securityholder shall not be deemed Section 3.3 (Authority Relative to have agreed to indemnify another Seller under this Agreement), Section 10.2(a3.10(i) (Equity Awards), Section 3.13 (Taxes), Section 3.18 (Brokers) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo Section 3.22 (including Surviving RFG Military and their SubsidiariesDefense Products and Services).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 1 contract
Samples: Purchase and Sale Agreement (United Technologies Corp /De/)
Indemnification by the Sellers. (a) From and after the Closing Date, subject Subject to the provisions of this Article 10limitations expressly set forth in Section 10.5 and Section 10.6, the Securityholders Sellers shall severally and not jointly and severally, except as provided in Section 10.2(b), shall indemnify, defend indemnify and hold harmless Calavo the Purchaser and its Affiliates (including Surviving RFG including, following the Closing, the Company) and their Subsidiaries) and each of their respective directors, officers, directors, shareholders, membersequity owners, employees, agents, consultants and other Representativesadvisors and representatives (collectively, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities“Purchaser Indemnified Parties”) from and against against, and will pay and reimburse them for, any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating Losses incurred or defending any Actions, claims and proceedings (all of suffered by the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, Purchaser Indemnified Parties directly or indirectly arising out of, relating to or resulting fromfrom any of the following:
(ia) Any any inaccuracy in or breach of any representation or warranty made by of any Seller or the Sellers Company contained in this Agreement, the Escrow Agreement (including or in any exhibit, schedule certificate or other agreement instrument delivered by or document delivered on behalf of any Seller or the Company pursuant to this Agreement), subject to Section 10.2(b)Agreement but specifically excluding the Employment Agreements;
(iib) Any any nonperformance or other breach of, of any covenant or failure to perform, any agreement of any RFG Family Entity Seller or any Seller that is the Company contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iiic) With except to the extent accrued or expressly reserved for as current Liabilities in line items on the Closing Balance Sheet and taken into account in determining the Final Closing Net Working Capital (i) any Taxes of the Company, any of its Subsidiaries, or the Sellers (except, with respect to the agreements Rollover Members, as expressly provided in Section 7.1(c)) with respect to which Surviving RFG taxable periods ending on or before the Closing Date, (ii) with respect to taxable periods beginning before the Closing Date and ending after the Closing Date, any Taxes of the Company or any of its Subsidiaries is a party which are allocable, pursuant to Section 7.3, to the portion of such period ending on the Closing Date, (iii) any Taxes relating to any member of an affiliated group with which the Company or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
its Subsidiaries has filed a Tax Return on a consolidated, combined or unitary basis, and (iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out Taxes of any actions or omissions made or taken by any Seller Person (other than the Company) for which the Company or any of the RFG Family Entities prior its Subsidiaries may be liable as a transferee or successor, by contract, agreement or otherwise, in each instance to the Closing;
(A) All extent such Taxes of any of arose during the RFG Family Entities for any taxable period periods or portions thereof ending on or prior to the Closing Date, in each case to the extent that such Taxes did not result from a Restricted Tax Action which was not consented to by the Seller Representative;
(Bd) all Taxes any Indebtedness of any member of an affiliated, combined the Company or unitary group of which any of the RFG Family Entities is or was a member on or its Subsidiaries existing prior to the Closing Datethat is not fully extinguished prior to or as of the Closing which, including for the avoidance of doubt, shall not include items (i)(1) through (4) in the definition of Indebtedness which pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; 10.12 Purchaser and (C) any Parent have jointly and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant severally agreed to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and the Released Parties against any claims, actions and all Losses that such Parties may incur based uponLiabilities related thereto;
(e) after determination by the SBA of whether the Indebtedness under the PPP Loan or any portion thereof is forgivable under the CARES Act, any PPP Loan Non-Forgiven Amount in excess of the sum of any amounts paid to the Purchaser pursuant to Section 2.5(f);
(f) the allocation of the Estimated Purchase Price in accordance with the Member Allocation Schedule;
(g) the Employee Closing Payments; and
(h) any Liability of the Company or the Subsidiaries arising out of, from or relating to or resulting from (a) any breach by the Seller their lack of a written cafeteria plan, in accordance with Section 125 of the representations and warranties set forth in Article 4Code, (b) prior to Closing. For the purposes of this Section 10.1 any unpaid Taxes inaccuracy in, or breach of any representation or warranty by any Seller under Treasury Regulation Section 1.1502-6 (or the Company shall be determined without regard to any reference to materiality, Material Adverse Effect or similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closingqualifications.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Ritchie Bros Auctioneers Inc)
Indemnification by the Sellers. (a) From The Sellers jointly and after the Closing Dateseverally agree, subject to the provisions other terms and conditions of this Article 10Agreement, to indemnify the Securityholders jointly Buyer and severallyits Affiliates, except as provided in Section 10.2(b), shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliatesagents, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacitieseach a "Buyer Indemnified Party") against and hold them harmless from and against any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, Losses arising out of, relating to or resulting from:
of (i) Any the breach of any representation or warranty made by of the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement other than in Sections 2.1 and 2.2 (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreementthe "Organization Reps"), subject to Section 10.2(b2.8 (the "Tax Reps");
, Section 2.9 (the "Benefit Plan Reps") and Section 2.17 (the "Broker's Fee Reps"), (ii) the breach by the Sellers of any of the Organization Reps, the Tax Reps, the Benefit Plan Reps or the Broker's Fee Reps, (iii) With any breach of any covenant or agreement of the Sellers contained herein, (iv) the following litigation and claims (the "Indemnified Disputes"): Xxxxxxx Xxxxxxxxx, et al. v. Meditrust Acquisition Company and Meditrust Company, L.L.C., Case No. 98-CVS-02857: Forsgate Golf, L.L.C. v. Meditrust Golf Group II, Inc., Civil Action Number 98-4327 (JCL) and the claim by Xxxx Xxxx d/b/a Xxxx Properties against Cobblestone Texas, Inc., and (v) any action brought by any shareholder of The Meditrust Companies ("Shareholder Action") claiming a breach of the fiduciary duties of the Boards of Directors of The Meditrust Companies in connection with the conveyance of the Acquired Companies by the Sellers to the Buyer under this Agreement. For purposes of this Agreement, claims for Losses arising out of any Shareholder Action, the Indemnified Disputes or breach by Sellers of any of the Organization Reps, Tax Reps, Benefit Plan Reps or Broker's Fee Reps shall be referred to herein as the "Excluded Claims". Anything in Section 8.1 to the contrary notwithstanding, no claim may be asserted nor any action commenced against the Sellers for breach of any representation or warranty contained herein, unless written notice of such claim or action is received by the Sellers describing in detail the facts and circumstances with respect to the agreements subject matter of such claim or action on or prior to the thirtieth (30th) day after the date on which Surviving RFG the representation or its Subsidiaries warranty on which such claim or action is a party based ceases to survive as set forth in Section 8.1 (the "Indemnification Cut-Off Date"), and such claim or is otherwise bound action arose on or prior to the date such representation or warranty ceased to survive, in which case such representation or warranty, and the Buyer's right to indemnification hereunder will survive as to such claim until such claim has been finally resolved in accordance with the terms of this Article VIII.
(b) The indemnification obligations of the Closing, Sellers pursuant to Section 8.2(a) (excluding the indemnification obligations of the Sellers for Excluded Claims; the amount paid with respect to Excluded Claims shall not be counted in any breaches calculation of the Threshold Amount or defaults the Maximum Amount) shall not be effective until the aggregate dollar amount of all Losses (including without limitation Sellers' expenses of defending and/or settling any claim or events dispute giving rise to such breaches or defaultsindemnification obligation) by any that would otherwise be indemnifiable pursuant to Section 8.2(a) exceeds one percent (1%) of the RFG Family Entities aggregate Purchase Price (the "Threshold Amount"), and then only to the extent such aggregate amount exceeds the Threshold Amount. The indemnification obligations of the Sellers pursuant to Section 8.2(a) (excluding the indemnification obligations of the Sellers related to Excluded Claims) shall be effective only until the dollar amount paid in respect of the Losses (including without limitation Sellers' expenses of defending and/or settling any claim or dispute giving rise to such indemnification obligation) indemnified against under Section 8.2(a) (excluding the indemnification obligations of the Sellers related to Excluded Claims) equals five percent (5%) of the aggregate Purchase Price (the "Maximum Amount") for all Losses. For purposes of determining the Threshold Amount and the Maximum Amount hereunder, the Purchase Price shall be the sum calculated in accordance with Section 1.3(a) hereof, using the amount of $386,000,000 in place of the amount of $391,278,000. For purposes of this Section 8.2(b), in computing such individual or aggregate amounts of claims, the amount of any insurance proceeds and any indemnity, contribution or other similar payment actually received by the Buyer Indemnified Parties from any third party with respect thereto shall be deducted from each such claim.
(c) [Not applicable]
(d) A Buyer Indemnified Party shall give the Sellers written notice of any claim, assertion, event or proceeding by or in respect of a third party as to which such Buyer Indemnified Party may request indemnification hereunder or as to which the Threshold Amount may be applied as soon as is practicable and in any event within thirty (30) days of the time that occurred such Buyer Indemnified Party learns of such claim, assertion, event or proceeding; provided, however, that the failure to so notify the Sellers shall not affect rights to indemnification hereunder except to the extent that the Sellers are actually prejudiced by such failure. The Sellers shall have the right to direct, through counsel of their own choosing, the defense or settlement of any such claim or proceeding at their own expense. If the Sellers elect to assume the defense of any such claim or proceeding, the Sellers shall consult with the Buyer Indemnified Party and the Buyer Indemnified Party may participate in such defense, but in such case the expenses of the Buyer Indemnified Party shall be paid by the Buyer Indemnified Party. The Buyer Indemnified Party shall provide the Sellers with access to its records and personnel relating to any such claim, assertion, event or proceeding during normal business hours and shall otherwise cooperate with the Sellers in the defense or settlement thereof, and the Sellers shall reimburse the Buyer Indemnified Party for all its reasonable out-of-pocket expenses in connection therewith. If the Sellers elect to direct the defense of any such claim or EXECUTION COPY 50 proceeding, the Buyer Indemnified Party shall not pay, or permit to be paid, any part of any claim or demand arising from such asserted liability unless the Sellers consent in writing to such payment or unless the Sellers, subject to the last sentence of this Section 8.2(d), withdraw from the defense of such asserted liability or unless a final judgment from which no appeal may be taken by or on behalf of the Sellers is entered against the Buyer Indemnified Party for such liability. If the Sellers fail to defend or if, after commencing or undertaking any such defense, the Sellers fail to prosecute or withdraw from such defense, the Buyer Indemnified Party shall have the right to undertake the defense or settlement thereof, at the Sellers' expense. If the Buyer Indemnified Party assumes the defense of any such claim or proceeding pursuant to this Section 8.2(d) and proposes to settle such claim or proceeding prior to a final judgment thereon or to forego any appeal with respect thereto, then the Buyer Indemnified Party shall give the Sellers prompt written notice thereof, and the Sellers shall have the right to participate in the settlement or assume or reassume the defense of such claim or proceeding.
(e) The Buyer hereby acknowledges and agrees that from and after the Closing;
(iv) Any litigation, arbitrationits sole and exclusive remedy with respect to any and all claims relating to this Agreement, investigation including the Acquired Shares, shall be pursuant to the indemnification provisions set forth in this Article VIII. In furtherance of the foregoing and except as specified herein, the Buyer hereby waives, to the fullest extent permitted under applicable Law, any and all rights, claims and causes of action relating to the subject matter of this Agreement that they may have against the Sellers arising under or other claim or legal proceeding based upon any Law (including, without limitation, any such rights, claims and legal proceedings that are listed on a schedule to or causes of action arising under or based upon common law or otherwise).
(f) Except as set forth in this Agreement), whether brought before the Sellers are not making any representation, warranty, covenant or agreement with respect to the matters contained herein. Anything herein to the contrary notwithstanding, no breach of any representation, warranty, covenant or agreement contained herein shall give rise to any right on the part of the Buyer, after the Closingconsummation of the transactions contemplated hereby, that is based upon or arises out of any actions or omissions made or taken by any Seller to rescind this Agreement or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closingtransactions contemplated hereby.
(cg) Notwithstanding Section 10.2(a) The Sellers shall have no liability under any provision of this Agreement for and 10.2(b), a Securityholder in no event shall not the Threshold Amount be deemed applied to have agreed any consequential damages. The Buyer shall take all reasonable steps to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to mitigate Losses for which indemnification may be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations claimed pursuant to this Article 10Agreement upon and after becoming aware of any event that could reasonably be expected to give rise to any such Losses.
Appears in 1 contract
Indemnification by the Sellers. (a) From and after JOINT AND SEVERAL). Each of the Closing DateSellers, subject to the provisions of this Article 10, the Securityholders jointly and severally, except as provided in Section 10.2(b), shall indemnify, defend indemnify each of the Purchaser Parties and save and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in them harmless against any Losses which any such capacities) from and against any and all lossesPurchaser Party may suffer, damagessustain or become subject to, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out a result of, in connection with, relating or incidental to or resulting from:
by virtue of: (ia) Any any breach of any representation or warranty made of the Company under this Agreement or any of the Schedules attached hereto, or in any of the certificates or other instruments or documents furnished by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered Company pursuant to this Agreement), subject to Section 10.2(b);
; (iib) Any any nonfulfillment or breach of, or failure to perform, any agreement of any RFG Family Entity covenant, agreement or any Seller that is contained in other provision by the Company under this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior Schedules attached hereto required to be performed or complied with by the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on Company or its Subsidiaries at or prior to the Closing Date, (B) all Taxes other than any breach of any member of an affiliated, combined Paragraph 4G above that was not knowing and willful); or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (Cc) any and all Taxes of claim by any Person (other than the RFG Family EntitiesPurchasers) imposed on the RFG Family Entities with respect to, or arising as a transferee result of, any Company Transaction (whether or successor, by Contract not consummated) based on any alleged arrangement or pursuant agreement to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction Company or any actions of its Subsidiaries or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each any of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against respective directors or officers is alleged to be a party; PROVIDED THAT the Sellers shall not have any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from liability under clause (a) any breach by the Seller of above (other than with respect to the representations and warranties contained in Paragraph 5B (Capital Stock and Related Matters), Paragraph 5O (Brokerage), and the first and last sentences of Paragraph 5D (Authorization; No Breach)) unless the aggregate of all Losses relating thereto for which the Sellers would, but for this proviso, be liable exceeds on a cumulative basis an amount equal to $250,000 (and then the Sellers shall be liable only for all Losses in excess thereof); and PROVIDED FURTHER that the Sellers shall not have any liability under clause (a) above for any individual item where the Loss relating to such item is less than $10,000 (but with it being understood, however, that all Losses reasonably related to claims arising out of the same or substantially common facts, events or circumstances shall be considered an individual claim for purposes of this Agreement and all such items shall be aggregated for purposes of the first proviso to this Paragraph 8B(i)); and PROVIDED FURTHER that the Sellers' aggregate liability under clause (a) above (other than with respect to the representations and warranties contained in Paragraph 5B (Capital Stock and Related Matters), Paragraph 5O (Brokerage), and the first and last sentences of Paragraph 5D (Authorization; No Breach)) shall - 37 - in no event exceed twelve percent (12%) of the Repurchase Price (but with it being understood, however, that nothing in this Agreement (including this Paragraph 8B) shall limit or restrict any of the Purchaser Parties' right to maintain or recover any amounts in connection with any action or claim based upon fraudulent misrepresentation or fraud). Any indemnification payment in respect of Losses under this Paragraph 8B(i) shall be reduced by an amount equal to the Tax Benefit, if any, attributable to the Losses giving rise to such payment. All indemnification payments for the benefit of the Purchasers under this Paragraph 8B shall be deemed to be adjustments to the Stock Purchase Price set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the ClosingParagraph 1B above.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 1 contract
Samples: Stock Purchase and Recapitalization Agreement (optionsXpress Holdings, Inc.)
Indemnification by the Sellers. (a) From and after the Closing Date, subject to the provisions of Except as otherwise limited by this Article 107 and Article 8 hereof, the Securityholders Sellers, jointly and severally, except as provided in Section 10.2(b), shall agree to indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) Buyer, each of its Affiliates and each of their respective officers, directors, shareholders, members, employees, other Representativesagents, Affiliates, stockholders and controlling Persons and their respective successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) assigns, harmless from and against and in respect of any and all liabilities, losses, damages, obligationsdemands, liabilities and other assessments, claims, costs and expensesexpenses (including interest, including, without limitation, settlement costsawards, judgments, interestpenalties, penalties and reasonable attorneys’ feessettlements, accountants’ fees and other fines, costs of remediation, diminutions in value, consequential damages, costs and expenses for incurred in connection with investigating or and defending any Actions, claims and proceedings (all or causes of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting from:
(i) Any breach of any representation or warranty made by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding action (including, without limitation, attorneys' fees and expenses and all fees and expenses of consultants and other professionals)) actually suffered, incurred or realized by such party (collectively, "Losses"), arising out of or resulting from or relating to any claims misrepresentation, breach of representation or warranty (excluding the representations and legal proceedings that are listed on a schedule warranties referenced in Section 7.1(b) hereof) or breach of any covenant or agreement made or undertaken by the Company in this Agreement or any misrepresentation or omission from any other agreement, certificate or document delivered to Buyer pursuant to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;Company Disclosure Schedule.
(b) From and after the Closing and subject to the provisions of Except as otherwise limited by this Article 107 and Article 8 hereof, each Seller Seller, severally (and not jointly) shall , agrees to indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) Buyer, each of its Affiliates and each of their respective officers, directors, shareholders, members, employees, other Representativesagents, Affiliates, stockholders and controlling Persons and their respective successors and permitted assigns assigns, harmless from and against and in respect of any and all Losses that such Parties may incur based upon, arising out of, relating to of or resulting from (a) or relating to any misrepresentation or breach by the Seller of the representations and warranties set forth representation or warranty contained in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing2.22 hereof.
(c) Notwithstanding the foregoing provisions of this Section 10.2(a) 7.1, the Sellers jointly and 10.2(b), a Securityholder shall not be deemed to have agreed severally agree to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything Buyer in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, full to the extent their Affiliates receive any payments from Liberty Fresh Foodssettlement or award under the arbitration proceeding referred to in Section 2.17(b) hereof results in a liability to Buyer, LLCthe Company or any Affiliate(s) agree to be jointly and severally liable for any obligations thereof, in the aggregate, in excess of Liberty Fresh Foodsthe amount set forth in such Section 2.17(b) as having been accrued by the Company as of June 30, LLC2003, if and to as reflected in the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10Company Financial Statements as of such date.
Appears in 1 contract
Samples: Stock Purchase Agreement (Basic Energy Services Inc)
Indemnification by the Sellers. (a) From and after the Closing Dateeach Seller shall, subject severally in proportion to the provisions of this Article 10such Seller’s Pro Rata Share, and not jointly, indemnify and hold Buyer, the Securityholders jointly and severallyCompany, except as provided in Section 10.2(b), shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) the Blocker and each of their officersrespective Affiliates, directors, shareholders, membersSubsidiaries, employees, other Representativesagents, Affiliatesrepresentatives, successors and permitted assigns (excluding collectively, the Sellers to the extent they serve in any such capacities“Buyer Indemnitees”) harmless from and against any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating Losses resulting from or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting from:
(i) Any the breach of any representation or warranty made concerning the Company set forth in Article IV, any Schedule related thereto, or the Company’s Secretary Certificate or the certificate delivered by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered Company pursuant to this Agreement), subject to Section 10.2(b2.02(b)(xiv);
(ii) Any breach of, or failure to perform, any agreement violation by the Company of any RFG Family Entity covenant or any Seller that is other agreement contained in this Agreement (including or any exhibit, schedule or other agreement or document delivered Schedule to be performed by the Company prior to the Closing pursuant to this Agreement), subject to Section 10.2(b)the terms hereof or thereof;
(iii) With respect any Sellers’ Expenses and any Closing Indebtedness of the Company, in each case to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as extent not included in the calculation of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;Final Closing Cash Purchase Price; or
(iv) Any litigation, arbitration, investigation any claim by or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out behalf of any actions holder or omissions made former holder or taken purported holder of Purchased Securities, in their capacity as such, with respect to any inaccuracy or omission in the Payment Spreadsheet or any claim by any Seller or Person that it is entitled to receive any of amounts in connection with the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (transactions contemplated by this Agreement other than as set forth in the RFG Family Entities) imposed on Payment Spreadsheet; provided that the RFG Family Entities as Buyer Indemnitees shall not be entitled to a transferee or successor, by Contract or pursuant duplicative recovery for the same Loss with respect to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments under Articles XI and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;XII.
(b) From and after the Closing and subject to the provisions of this Article 10Closing, each Seller severally (is solely responsible for and not jointly) shall indemnify, defend indemnify and hold the Buyer Indemnitees harmless Calavo from and against, any and all Losses resulting from or arising out of: (including Surviving RFG i) any breach by such Seller of any representation or warranty concerning such Seller contained in Article III of this Agreement or any Schedule related thereto; (ii) any violation by such Seller of any covenant or other agreement contained in this Agreement or any Schedule related thereto that is required to be performed by such Seller prior to the Closing pursuant to the terms hereof or thereof; or (iii) any violation by such Seller of any covenant or other agreement contained in this Agreement or in any Schedule related thereto that is required to be performed from and their Subsidiariesafter the Closing pursuant to the terms hereof and thereof.
(c) From and each of their officersafter the Closing, directors, shareholders, members, employees, other Representatives, Affiliates, successors the B-Fund shall indemnify and permitted assigns hold Buyer Indemnitees harmless from and against any and all Losses that such Parties may incur based upon, resulting from or arising out of, relating to or resulting from : (ai) any breach by the Seller Blocker of any representation or warranty concerning the Blocker contained in Article V of this Agreement, any Schedule related thereto or the Blocker’s Secretary’s Certificate; (ii) any violation by the Blocker of any covenant or other agreement contained in this Agreement or any Schedule related thereto that is required to be performed by the Blocker prior to the Closing pursuant to the terms hereof or thereof; or (iii) any Indebtedness of the representations and warranties set forth Blocker existing immediately prior to the Closing not otherwise paid in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (full at or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable prior to such Seller after the Closing.
(cd) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder The Sellers shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations Loss or Losses pursuant to Section 12.02(a)(i), Section 12.02(a)(ii), Section 12.02(b)(i), Section 12.02(b)(ii), Section 12.02(c)(i) or Section 12.02(c)(ii) (“Buyer Warranty Losses”) (other than with respect to Fundamental Representations and Extended Exposure Representations) and no claim for Buyer Warranty Losses shall be made (i) with respect to any single Loss (or series of Liberty Fresh Foodsrelated or similar Losses) of less than $25,000, LLC(ii) unless and until the aggregate amount of all Buyer Warranty Losses incurred by the Buyer Indemnitees (excluding Losses for which indemnification would not be available as a result of clause (i) above) exceeds $2,000,000 (the “Threshold”), if in which case the Sellers shall be liable for the full amount of the Buyer Warranty Losses in excess of the Threshold, and (iii) to the extent that Liberty Fresh FoodsBuyer Warranty Losses exceed $10,000,000 (the “Cap”) in the aggregate. The Sellers shall not be liable for any Buyer Warranty Losses with respect to breaches of the Extended Exposure Representations to the extent that such Buyer Warranty Losses exceed the Extended Exposure Rep Cap. The Sellers shall not be liable for any Buyer Warranty Losses with respect to breaches of the Fundamental Representations to the extent that such Buyer Warranty Losses exceed the Closing Cash Purchase Price actually received by them. Notwithstanding the foregoing, LLC defaults the limitation on its obligations Losses set forth in this Section 12.02(d) shall not apply to any Losses pursuant to Section 12.02(a)(i) arising from fraud related to the representations and warranties of the Company or any Losses pursuant to Sections 12.02(a)(iii), 12.02(a)(iv), 12.02(b)(iii), or 12.02(c)(iii), provided that no Seller shall be liable for any Losses under Section 12.02 or otherwise to the extent such Losses exceed the portion of the Closing Cash Purchase Price actually received by such Seller.
(e) Buyer’s right to make claims under this Article XII and Section 11.01, shall be further subject to the following limitations and conditions:
(i) None of Buyer, the Company or the Sellers may assign their rights in the Escrow Fund or any interest therein without the prior written consent of Buyer, the Company and Sellers’ Representative.
(ii) No Buyer Indemnitee shall, directly or indirectly, (A) initiate any claim for indemnification under Section 12.02(a) or Section 11.01 unless such claim is brought against all of the Sellers or (B) offer to compromise any claim for indemnification under Section 12.02(a) or Section 11.01 unless the same offer is made to all of the Sellers.
(iii) No claim for indemnification shall be made with respect to Losses arising out of any breach of the representations or warranties contained in Article IV or otherwise to the extent there has been a corresponding reduction in the calculation of the Estimated Closing Cash Purchase Price or the Final Closing Cash Purchase Price.
(iv) Except as otherwise provided herein, no Seller shall be liable for any Loss under Section 12.02(a) or Section 11.01 in excess of such Seller’s Pro Rata Share of each such Loss, and the Buyer Indemnitees shall not be entitled to recover from any Seller any claim for indemnification in an amount greater than the Closing Cash Purchase Price actually received by such Seller minus all amounts previously paid by or on behalf of such Seller to or on behalf of a Buyer Indemnitee pursuant to this Agreement. For purposes of the Sellers’ indemnification obligations hereunder, a Seller’s “Pro Rata Share” shall be as set forth on the Payment Spreadsheet, it being understood and agreed that with respect to any indemnification obligations hereunder of the Sellers with respect to Section 12.02(a)(i) for any breach of any Extended Exposure Representation or Fundamental Representation contained in Article 10IV, in each case that is not paid out of the Escrow Fund, the Pro Rata Share of the Majority Sellers shall equal 100% of Losses subject to indemnification under 12.02(a)(i) in excess of the Cap.
Appears in 1 contract
Samples: Securities Purchase Agreement (Diplomat Pharmacy, Inc.)
Indemnification by the Sellers. The Sellers shall, jointly and severally (except as otherwise provided in clauses (a), (c) and (e) below), indemnify the Buyer in respect of, and hold the Buyer harmless against, any and all Damages incurred or suffered by the Company, the Buyer or any Affiliate thereof resulting from, relating to or constituting:
(a) From and after any breach or inaccuracy, as of the date of this Agreement or as of the Closing Date, subject to the provisions of this Article 10, the Securityholders jointly and severally, except as provided in Section 10.2(b), shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) from and against any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting from:
(i) Any breach of any representation or warranty made by the Sellers of any Seller contained in this Agreement (including or any exhibit, schedule or other agreement or document delivered instrument furnished by such Seller to the Buyer pursuant to this Agreement (with respect to which such Seller shall be solely liable for such indemnification obligation);
(b) any breach or inaccuracy, as of the date of this Agreement or as of the Closing Date, of any representation or warranty of the Company contained in this Agreement or any other agreement or instrument furnished by the Company to the Buyer pursuant to this Agreement;
(c) any failure to perform any covenant or agreement of any Seller contained in this Agreement or any other agreement or instrument furnished by such Seller to the Buyer or the Company pursuant to or in connection with this Agreement (with respect to which such Seller shall be solely liable for such indemnification obligation; provided that the Sellers shall, jointly and severally, be liable for such indemnification obligation with respect to the failure of Trash Lady ME or Trash Lady NH to perform any such covenant or agreement);
(d) any failure to perform any covenant or agreement of the Company contained in this Agreement or any other agreement or instrument furnished by the Company to the Buyer pursuant to this Agreement;
(e) any failure of any Seller to have good, valid and marketable title to the Company Shares issued in the name of such Seller, free and clear of all Security Interests (with respect to which such Seller shall be solely liable for such indemnification obligation);
(f) any claim by a stockholder or former stockholder of the Company, or any other Person, seeking to assert, or based upon: (i) the ownership or rights to ownership of any shares of stock of the Company; (ii) any rights of a stockholder (other than the right to receive any of the Purchase Price, if any, to which such Person is entitled pursuant to this Agreement), subject including any option, preemptive rights or rights to Section 10.2(b)notice or to vote; (iii) any rights under the certificate of incorporation or by-laws of the Company; or (iv) any claim that his, her or its shares were wrongfully repurchased by the Company;
(iig) Any breach of, any claim for fraud or failure to perform, a Knowing Misrepresentation arising in connection with the transactions contemplated by this Agreement;
(h) any agreement of Litigation Matter;
(i) any RFG Family Entity or any Seller that is contained in this Agreement Environmental Matters (including any exhibitand all “costs of response” and “damages” to “natural resources,” as those terms are defined under CERCLA, schedule any and all costs to correct or other agreement or document delivered pursuant remedy any failure to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound comply with applicable Environmental Law as of the ClosingClosing Date); or
(j) any liability (whether known or unknown, any breaches whether absolute or defaults (contingent, whether liquidated or events giving rise unliquidated and whether due or to such breaches become due) arising from or defaults) by any of the RFG Family Entities that occurred prior related to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person Owned Real Property (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken expressly undertaken by the Trust;
(b) From and after Company under the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their SubsidiariesNew Leases).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 1 contract
Samples: Stock Purchase Agreement (Casella Waste Systems Inc)
Indemnification by the Sellers. (a) From 8.1.1 Subject to the terms of this Article 8, from and after the Closing DateClosing, subject to each of the provisions of this Article 10Sellers (together with their respective successors, assigns and heirs, the Securityholders jointly and severally, except as provided in Section 10.2(b), “Seller Indemnifying Parties”) [***] shall indemnify, defend and hold harmless Calavo Buyer and its Affiliates (including Surviving RFG and their Subsidiariesincluding, after the Closing, the Acquired Companies) and each of their respective officers, directors, shareholdersequityholders, managers, members, employees, other agents, Representatives, Affiliates, successors and permitted assigns (excluding each a “Buyer Indemnified Party” and, collectively, the Sellers to the extent they serve “Buyer Indemnified Parties”) harmless against and in any such capacities) from and against respect of any and all lossesLosses, damageswhich such Buyer Indemnified Party may have suffered, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating incurred or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based uponbecome subject to, arising out of, relating to based upon or resulting fromotherwise in respect of:
(ia) Any any breach or inaccuracy of any representation or warranty made by the Sellers Company or TopCo in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to [***] of this Agreement); provided, subject to however, that in determining whether there has been a breach or inaccuracy of a representation or warranty by the Company or TopCo for purposes of this Section 10.2(b);
(ii) Any breach of, 8.1.1 or failure to perform, any agreement in determining the amount of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With Losses with respect to the agreements such breach, such representations and warranties will be read without regard to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding materiality (including, without limitation, any claims and legal proceedings that are listed on a schedule reference to this Agreement), whether brought before “material,” “in all material respects” or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(AMaterial Adverse Effect) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trustcontained therein;
(b) From any breach or non-fulfillment of any covenant, agreement or obligation of the Company or TopCo under this Agreement;
(c) any Pre-Closing Acquired Company Taxes;
(d) any [***] Fraud by the Company or TopCo; and/or
(e) any amount by which the sum of the Specific Indemnity Items, when aggregated together, exceeds the aggregate amount of Specific Indemnity Items that have been included in the calculation of Total Purchase Price, the Notified Leakage Amount, any Leakage, and/or the EV to Equity Statement (and for this purpose the EV to Equity Statement will be deemed to include an amount of Undisclosed Third Party Indebtedness equal to zero).
8.1.2 Subject to the terms of this Article 8, from and after the Closing and subject to the provisions of this Article 10Closing, each Seller severally (and not jointly) of the Sellers [***] shall indemnify, defend and hold the Buyer Indemnified Parties harmless Calavo (including Surviving RFG against and their Subsidiaries) and each in respect of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that Losses, which such Parties Buyer Indemnified Party may incur based uponhave suffered, incurred or become subject to, arising out of, relating to based upon or resulting from otherwise in respect of:
(a) any breach or inaccuracy of any representation or warranty made by such Seller in Article 2 or Article 3 of this Agreement; provided, however, that in determining the Seller amount of the any Losses with respect to such breach, such representations and warranties set forth will be read without regard to any materiality (including, without limitation, any reference to “material,” “in Article 4, all material respects” or Material Adverse Effect) contained therein;
(b) any unpaid Taxes breach or non-fulfillment of any covenant, agreement or obligation of such Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and this Agreement; and/or
(c) any breach [***] Fraud by the Seller of any covenants applicable to such Seller after the ClosingSeller.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 1 contract
Indemnification by the Sellers. (a) From and after the Closing Date, subject to the other provisions of this Article 10X, each of the Securityholders jointly and Sellers severally, except as with respect to Article IV and any covenant specifically made by or applicable to Xxxxxx, Glenrock Holdings, LLC or Xxxx hereunder, and jointly for all other purposes for which indemnification is provided hereunder (but only to the extent of the respective percentages set forth in Section 10.2(b5.1 of the Company Disclosure Letter), shall indemnify, defend agree to indemnify the Purchaser and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their its officers, directors, shareholdersemployees and Affiliates (including the Company) (collectively, members, employees, other Representatives, Affiliates, successors the “Indemnified Purchaser Persons”) and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) hold each of them harmless from and against any and all Actions, liabilities, losses, costs, damages, obligationsexpenses or penalties, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees expenses and other costs and expenses for investigating disbursements in connection with any Action against such Person whether or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, not arising out of, relating to of or resulting from:
from any Third Party claim (collectively, “Damages”), suffered, paid or incurred by such Indemnified Purchaser Person to the extent resulting from or caused by: (i) Any any breach of any of the representations and warranties made by the Sellers to the Purchaser in Article IV and made by the Sellers to the Purchaser in Article V and Article VB of this Agreement, or of any breach of any representation or warranty made in respect thereof contained in any certificate delivered by the Company, or the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any any breach of, by the Company or failure to perform, the Sellers of any covenant or agreement of any RFG Family Entity the Company or any Seller that is the Sellers contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect any Taxes attributable to a Pre-Closing Tax Period allocable to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of Sellers under Section 9.2 and any Taxes that the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that Sellers are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities liable for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation under Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;9.6.
(b) From Notwithstanding anything to the contrary in this Section 10.1, the Indemnified Purchaser Persons shall be entitled to indemnification pursuant to Section 10.1(a) with respect to any claim for indemnification pursuant to Section 10.1(a)(i) (other than for a breach of representations or warranties set forth in Section 5.7 (Taxes)):
(i) other than in respect of claims for indemnification arising out of, resulting from or caused by a breach of the Seller Fundamental Representations, only if, and after then only to the Closing and extent that the aggregate Damages to all Indemnified Purchaser Persons (without duplication), with respect to all such claims, exceed Two Hundred Thousand Dollars (US $200,000) (the “Deductible”), whereupon (subject to the provisions of this Article 10clause (ii) below) the Sellers shall be obligated to pay in full all such amounts but only to the extent such aggregate Damages are in excess of the amount of the Deductible; and
(ii) only with respect to claims for indemnification made on or before the date that is eighteen (18) months after the Closing Date; provided, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, with respect to claims for indemnification arising out of, relating to or resulting from (a) any or caused by a breach by of the Seller of Fundamental Representations and the representations and warranties set forth in Article 4Sections 5.7 (Taxes) and 5.13 (Benefit Plans), the Indemnified Purchaser Persons shall be entitled to indemnification pursuant to Section 10.1(a)(i) with respect to any such claim indefinitely or until the latest date provided for their survival in Section 12.1; and
(biii) any unpaid Taxes only to the maximum amount of Damages of Two Million Dollars ($2,000,000) (the “Cap”), provided that such Cap shall not apply to the Seller Fundamental Representations, provided further that damages for the breach of any Seller under Treasury Regulation Section 1.1502-6 (Fundamental Representations shall be limited to actual damages only and in no event shall include consequential or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closingpunitive damages.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 1 contract
Indemnification by the Sellers. (a) From Sellers (pursuant to this Agreement) and Option Holders (pursuant to their respective Option Amendment and Release Agreements), up to their respective Purchase Price Pro Rata Percentages of the Escrow Account in connection with payments that are from the Escrow Account, and Sellers, up to their respective Common Pro Rata Percentages of each applicable Loss in connection with payments that are not from the Escrow Account, shall indemnify and hold Purchaser, Parent, their Affiliates and Company (from and after the Closing Date, subject to the provisions of this Article 10, the Securityholders jointly and severally, except as provided in Section 10.2(b), shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their SubsidiariesClosing) and each of their officersrespective shareholders, trustees, directors, shareholdersofficers, membersemployees and agents (collectively, employees, other Representatives, Affiliates, successors the “Purchaser Parties”) harmless against and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) from and against in respect of any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating Losses which are incurred by virtue of or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting from:
result from (i) Any the inaccuracy in or breach of any representation or warranty made by the Sellers Company in this Agreement (including or any exhibitcertificate executed in connection herewith, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement the non-fulfillment by the Company of any RFG Family Entity unwaived covenant, obligation or any Seller that is agreement required to be performed by it prior to the Closing, in each case as contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by in any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation other Transaction Documents or other claim in any document or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to instrument delivered at the Closing Date, (B) all Taxes of any member of an affiliated, combined pursuant hereto or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;thereto.
(b) From and after Sellers, up to their respective Common Pro Rata Percentages of the Closing and subject to Escrow Account in connection with payments that are from the provisions of this Article 10Escrow Account, each Seller severally (and not jointly) shall indemnify, defend indemnify and hold the Purchaser Parties harmless Calavo (including Surviving RFG against and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against in respect of any and all Losses that such Parties may incur based upon, arising out of, relating to which are incurred by virtue of or resulting result from (ai) the inaccuracy in or breach of any representation or warranty made by any Seller in this Agreement or any certificate executed in connection herewith or (ii) the non-fulfillment or breach of any unwaived covenant, obligation or agreement, in each case as made by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes or on behalf of any Seller under Treasury Regulation Section 1.1502-6 (in this Agreement or in any similar provision of state, local the other Transaction Documents or foreign law), as a transferee in any document or successor, by contract, instrument delivered at the Closing pursuant hereto or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closingthereto.
(c) Notwithstanding Section 10.2(aEach Seller, in connection with payments that are not from the Escrow Account, shall indemnify and hold the Purchaser Parties harmless against and from and in respect of any and all Losses not to be paid from the Escrow Account, which are incurred by virtue of or result from (i) and 10.2(b)the inaccuracy in or breach of any representation or warranty made by such Seller in this Agreement or any certificate executed in connection herewith or (ii) the non-fulfillment or breach of any unwaived covenant, a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) obligation or 10.2(b) agreement, in each case as made by reason or on behalf of such Seller in this Agreement or in any of the other Seller’s position as an officer, director, shareholder, member Transaction Documents or employee of Calavo (including Surviving RFG and their Subsidiaries)in any document or instrument delivered at the Closing pursuant hereto or thereto.
(d) Notwithstanding anything in Section 10.5(a) to For the contrarysake of clarity and the avoidance of doubt, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to two examples of the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any Sellers’ indemnification obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults are set forth on its obligations pursuant to this Article 10Schedule 11.1(d).
Appears in 1 contract
Indemnification by the Sellers. (a) From Subject to Section 8.6 hereof, from and after the Closing Date, subject to the provisions of this Article 10Closing, the Securityholders Sellers jointly and severally, except as provided in Section 10.2(b), shall severally agree to indemnify, defend and hold harmless Calavo (including Surviving RFG save the Buyer and their Subsidiaries) the Company, and each of their its officers, directors, shareholders, members, employees, other Representativesagents, Affiliatesand the successors, successors assigns and permitted assigns affiliates of the foregoing (excluding the Sellers to the extent they serve in any such capacitieseach, a “Buyer Indemnified Party”) harmless from and against any and all lossesliabilities (whether contingent, damagesfixed or unfixed, liquidated or unliquidated, or otherwise), obligations, liabilities deficiencies, demands, claims, suits, actions, or causes of action, assessments, losses, costs, expenses, interest, fines, penalties, actual or punitive damages (including reasonable fees and expenses of attorneys, accountants and other costs experts and expensesconsultants incurred in the investigation of or defense thereof or in enforcing rights hereunder) (individually and collectively, the “Losses”) suffered, sustained or incurred by any Buyer Indemnified Party relating to, resulting from, arising out of or otherwise by virtue of:
(a) any inaccuracy in the representations or warranties of the Sellers contained in this Agreement;
(b) the failure of the Sellers to perform any of their covenants or obligations contained in this Agreement or the Transaction Documents or in any exhibit or schedule hereto or thereto;
(c) the Excluded Liabilities;
(d) any Taxes imposed on the Company, any of its Subsidiaries or with respect to the Business for any period (or portion of any period) ending on or before the Closing Date, which are the responsibility of the Sellers as provided in Section 9.2 hereof, including, without limitationlimitations, settlement costs, judgments, interest, penalties any Taxes imposed in connection with the Section 338(h)(10) Election and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all the transfer of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting from:
(i) Any breach of any representation or warranty made by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b)Excluded Assets;
(iie) Any breach of, the assertion or failure to perform, any agreement of any RFG Family Entity recovery against the Buyer or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller Company or any of the RFG Family Entities prior to the Closing;
(A) All Taxes its Subsidiaries in connection with any employment-related claims arising out of any of the RFG Family Entities for any taxable period ending or in connection with facts, circumstances or conditions existing on or prior to the Closing, which are (i) filed prior to the Closing Date, Date or (Bii) all Taxes of any member of filed after the Closing Date but which arose from facts and circumstances or an affiliated, combined or unitary group of event which any of the RFG Family Entities is or was a member on or existed prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 1 contract
Samples: Stock Purchase Agreement (Insurance Auto Auctions, Inc)
Indemnification by the Sellers. (a) From and after the Closing Date, subject to the provisions of this Article 10, the Securityholders jointly and severally, except as provided in Section 10.2(b), shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) from and against any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting from:
(i) Any breach of any representation or warranty made by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing In accordance with and subject to the provisions of this Article 10ARTICLE 7, each Seller the Sellers shall jointly and severally (and not jointly) shall indemnify, defend indemnify and hold harmless Calavo (including Surviving RFG Purchaser, Parent, their Affiliates, and their Subsidiaries) and each of their the officers, directors, shareholdersagents and employees of Purchaser, membersParent, employeesand their Affiliates (collectively, other Representatives, Affiliates, successors and permitted assigns the "PURCHASER INDEMNITEES") from and against and in respect of any and all Losses that such Parties may incur based uponloss, damage, diminution in value, Liability, cost and expense, including reasonable attorneys' fees and amounts paid in settlement (collectively, the "INDEMNIFIED LOSSES"), suffered or incurred by any one or more of the Purchaser Indemnitees by reason of, or arising out of:
(i) any misrepresentation or breach of representation or warranty of the Sellers to Purchaser, Parent, or both, contained in this Agreement, the Other Agreements, the DISCLOSURE SCHEDULES or any certificate, instrument, agreement or other writing delivered by or on behalf of any Seller pursuant to this Agreement, or the breach of any covenant or agreement of any Seller contained in this Agreement, any Other Agreement, or in the DISCLOSURE SCHEDULES or any certificate, instrument, agreement or other writing delivered to Purchaser or Parent by or on behalf of any Seller pursuant to this Agreement;
(ii) any and all Liabilities of the Sellers other than the Assumed Liabilities;
(iii) any and all Actions, Orders, assessments, fees and expenses incident to any of the foregoing or incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing this indemnification; and
(iv) any Liability relating to any bankruptcy, insolvency or resulting from (a) any breach by receivership involving the Seller of the representations and warranties set forth in Article 4, Company.
(b) The Sellers shall reimburse Purchaser Indemnitees on demand for any unpaid Taxes Indemnified Losses suffered by the Purchaser Indemnitees, based on the judgment of any Seller under Treasury Regulation Section 1.1502-6 (court of competent jurisdiction or any similar provision pursuant to a bona fide compromise or settlement of stateclaims, local or foreign law), as a transferee or successor, by contractdemands, or otherwise and actions in respect of any Indemnified Losses. The Sellers shall have the opportunity to defend at their expense any claim, action or demand for which the Purchaser Indemnitees claim indemnity against the Sellers; provided that (ci) any breach the defense is conducted by reputable counsel approved by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b)Purchaser Indemnitees, a Securityholder which approval shall not be deemed to have agreed to indemnify another Seller under Section 10.2(aunreasonably withheld or delayed; (ii) the defense is expressly assumed in writing within ten (10) days after written notice of the claim, action or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) demand is given to the contrary, Xx. X. Catchot, Xx. X. Catchot Sellers; and Xx. Xxxxxx (iii) counsel for the Purchaser Indemnitees may participate at all times and their Affiliates, in all proceedings (formal and informal) relating to the extent their Affiliates receive any payments from Liberty Fresh Foodsdefense, LLC) agree to be jointly compromise and severally liable for any obligations settlement of Liberty Fresh Foodsthe claim, LLC, if and to action or demand at the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10expense of the Purchaser Indemnitees.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Abrams Industries Inc)
Indemnification by the Sellers. (a) From and after the Closing Date, subject Subject to the provisions other terms and conditions of this Article 10Article 7, the Securityholders jointly and severallySellers shall indemnify the Purchaser, except as provided in Section 10.2(b)the Company, shall indemnifytheir respective Affiliates, defend and hold harmless Calavo (including Surviving RFG the Purchaser Representatives and their Subsidiaries) respective successors and each of assigns, from and against, and shall hold the Purchaser, the Company, their officers, directors, shareholders, members, employees, other Representatives, respective Affiliates, the Purchaser Representatives and their respective successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) harmless from and against against, any and all lossesLosses incurred or sustained by, damagesor imposed upon, obligationsthe Purchaser, liabilities the Company, their respective Affiliates, the Purchaser Representatives and other costs their respective successors and expensesassigns, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating with respect to or resulting from:
by reason of: (ia) Any any inaccuracy in or breach of any of the representations or warranties of the Company or the Sellers contained in this Agreement, any inaccuracy in or breach of any of the representations or warranties set forth in any certificate delivered by the Sellers, the Company or the Seller Representative pursuant to this Agreement or any inaccuracy in or breach of any of the representations or warranties of any Transaction Beneficiary set forth in the Transaction Beneficiary Joinder; (b) any breach or non-fulfillment of any covenant, agreement or obligation of the Sellers, the Company or the Seller Representative contained in this Agreement and to be performed following the Closing; (c) any Pre-Closing Taxes (not including for the avoidance of doubt, any Unpaid Pre-Closing Taxes taken into account in the calculation of Final Indebtedness, as finally determined pursuant to Section 2.4); (d) any Indebtedness of the Company or Transaction Expenses (in each case, as of immediately prior to the Closing) to the extent not taken into account in the calculation of Final Indebtedness or Final Transaction Expenses, respectively, as finally determined pursuant to Section 2.4; and (e) Fraud (including with respect to any representations or warranties made by the Company, notwithstanding that the Company and not the Sellers made any such representation or warranty). In determining whether there has been a breach of any representation or warranty made by the Sellers in this Agreement (including any exhibitAgreement, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement and in determining the amount of any RFG Family Entity Losses arising out of or resulting therefrom, in each case, such determination will be made without giving effect to any qualifier as to “materiality” or “Material Adverse Effect” (or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iiisimilar qualification) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4any such representation and warranty, (b) except for any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise reference to “Material Adverse Effect” in the representation and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiarieswarranty set forth in Section 3.6(b).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 1 contract
Indemnification by the Sellers. (a) From CDG, Wagenheim, Pew, PDSFC and after the Closing DateXxxxxx, subject to the provisions on behalf of this Article 10themselves and their respective successors, the Securityholders executors, administrators, estates, heirs and permitted assigns, jointly and severally, except as provided in Section 10.2(b)and (b) the other Selling Stockholders, shall indemnifyon behalf of themselves and their respective successors, defend executors, administrators, estates, heirs and permitted assigns, severally and not jointly, agree subsequent to the Closing Date to indemnify and hold harmless Calavo (including Surviving RFG the Company, ADC, their respective affiliates and their Subsidiaries) and each of their respective shareholders, officers, directors, shareholdersemployees and agents (individually, membersa "Company Indemnified Party" and collectively, employees, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities"Company Indemnified Parties") from and against any and in respect of all losses, damagesliabilities, obligations, liabilities and other costs and expensesdamages, includingdeficiencies, without limitationactions, settlement costssuits, proceedings, demands, assessments, orders, judgments, interestfines, penalties and reasonable attorneys’ feespenalties, accountants’ fees and other costs and expenses for investigating (including the reasonable fees, disbursements and expenses of attorneys, accountants and consultants) of any kind or defending any Actions, nature whatsoever (whether or not arising out of third-party claims and proceedings (including all amounts paid in investigation, defense or settlement of the foregoing being collectively referred foregoing) sustained, suffered or incurred by or made against a party entitled to herein indemnification (a "Loss" or "Losses"), as “Losses”) that such parties may incur based uponlosses are incurred, arising out of, relating to based upon or resulting fromin connection with:
(i) Any conditions, circumstances or occurrences which constitute or result in any breach of any representation or warranty made by the Sellers any Seller in this Agreement (including or in any schedule, exhibit, schedule certificate, financial statement, agreement or other agreement instrument delivered under or document delivered pursuant to in connection with this Agreement), subject to Section 10.2(bor by reason of any claim, action or proceeding asserted or instituted arising out of any matter or thingcovered by any such representations or warranties (collectively, "Representation and Warranty Claims");
(ii) Any any breach of, or failure to perform, any agreement of any RFG Family Entity covenant or agreement made by any Seller that is contained in this Agreement (including or in any schedule, exhibit, schedule certificate, financial statement, agreement or other agreement instrument delivered under or document delivered pursuant to in connection with this Agreement), subject to Section 10.2(b)or by reason of any claim, action or proceeding asserted or instituted arising out of any matter or thing covered by any such covenant or agreement;
(iii) With respect any fees and expenses of the Sellers (including without limitation legal fees and accounting fees) relating to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closingexecution, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims delivery and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions performance of this Article 10Agreement paid, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, assumed or otherwise and (c) any breach borne by the Seller of any covenants applicable to such Seller after the ClosingADC.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 1 contract
Indemnification by the Sellers. (a) From and after the Closing DateEach Seller agrees, subject to the provisions other terms and conditions of this Article 10Section 7.03, the Securityholders jointly and severally, except as provided in Section 10.2(b), shall indemnify, defend to indemnify the Purchaser and its affiliates against and hold the Purchaser and its affiliates harmless Calavo from any and all Losses of or to the Purchaser and its affiliates arising out of or with respect to (including Surviving RFG and their Subsidiariesi) and each the breach of their officersany representation, directorswarranty, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns (excluding covenant or agreement of any of the Sellers in this Agreement or any of the Ancillary Agreements, (ii) the conduct of the Business prior to the Closing or the use or ownership of the Assets prior to the transfer to the Purchaser pursuant to the terms of this Agreement, (iii) the Retained Liabilities, (iv) other than to the extent they serve such Loss is attributable to the negligence or willful misconduct of the Purchaser, its employees or agents, the performance by the Purchaser, its employees and agents of the Purchaser's obligations under Section 5.09, and (v) any of the Sellers' Employees that are not hired by the Purchaser arising within the scope of their employment by the Sellers.
(b) No claim may be made against the Sellers for indemnification pursuant to this Section 7.03 with respect to any individual Loss unless the aggregate of all Losses of the Purchaser with respect to this Section 7.03 shall exceed $100,000, in which case the Sellers shall be required to pay or be liable for the aggregate amount of such Losses and any additional Losses; provided, however, that any Losses arising in connection with Sections 3.18, 5.07, 5.09, 5.10(b) or 9.01 shall not be subject to any such capacities) from and against any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting from:.
(ic) Any No claim may be asserted nor any action commenced against the Sellers pursuant to this Section 7.03 or otherwise for breach of any representation or warranty made by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibitAgreement, schedule unless written notice of such claim or other agreement or document delivered pursuant to this Agreement)action is received by Forkx, subject to Section 10.2(b);
(iii) With Xxc., on behalf of the Sellers, describing the facts and circumstances with respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as subject matter of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending action on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined date on which the representation or unitary group of warranty on which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceedingaction is based ceases to survive as set forth in Section 7.01, irrespective of whether brought the subject matter of such claim or action shall have occurred before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries)date.
(d) Notwithstanding anything The Purchaser agrees to give Forkx, Xxc., on behalf of the Sellers, prompt written notice of any claim, assertion, event or proceeding by or in respect of a third party of which it has knowledge concerning any Loss as to which it may request indemnification hereunder or any liability or damage as to which the $100,000 amount referred to in Section 10.5(a7.03(b) may be applied. The Sellers shall have the right to direct, through counsel of their own choosing, the defense or settlement of any such claim or proceeding at their own expense. If the Sellers elect to direct the defense of any such claim or proceeding, the Purchaser may participate in such defense, but in such case the expenses of the Purchaser shall be paid by the Purchaser. The Purchaser shall provide the Sellers with access to its records and personnel relating to any such claim, assertion, event or proceeding during normal business hours and shall otherwise cooperate with the Sellers in the defense or settlement thereof, and the Sellers shall reimburse the Purchaser for all its reasonable out-of-pocket expenses in connection therewith. If the Sellers elect to direct the defense of any such claim or proceeding, the Purchaser shall not pay, or permit to be paid, any part of any claim or demand arising from such asserted liability unless the claim may be settled for less than the $100,000 amount referred to in Section 7.03(b) or Sellers consent in writing to such payment (which consent shall not be unreasonably withheld) or unless the Sellers, subject to the contrarylast sentence of this Section 7.03(d), Xxwithdraw from the defense of such asserted liability or unless a final judgment from which no appeal may be taken by or on behalf of the Purchaser is entered against the Purchaser for such liability. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, If the Sellers shall fail to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLCdefend or, if and after commencing or undertaking any such defense, shall fail to prosecute or shall withdraw from such defense, the extent that Liberty Fresh FoodsPurchaser shall have the right to undertake the defense or settlement thereof, LLC defaults on its obligations at the Sellers' expense. If the Purchaser assumes the defense of any such claim or proceeding pursuant to this Article 10Section 7.03(d) and proposes to settle such claim or proceeding prior to a final judgment thereon or to forego any appeal with respect thereto, then the Purchaser shall give the Sellers prompt written notice thereof and the Sellers shall have the right, at their own expense, to participate in the settlement or assume or reassume the defense of such claim or proceeding.
Appears in 1 contract
Samples: Asset Purchase Agreement (Ritchie Bros Auctioneers Inc)
Indemnification by the Sellers. (a) From and after the Closing DateThe Sellers will, subject to the provisions of this Article 10, the Securityholders jointly and severally, except as provided in Section 10.2(b), shall indemnify, defend indemnify and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) Acquiror Indemnitee from and against any Damages suffered or incurred by any Acquiror Indemnitee and all losseswhich relate to, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating arise from or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out a result of, relating to or resulting from:
: (i) Any any inaccuracy in, breach or alleged breach of any representation or warranty made by of the Acquired Companies or the Sellers set forth in this Agreement (including Agreement, any exhibitRelated Agreement, the Disclosure Schedules or any other document, certificate, schedule or other agreement instrument delivered or document delivered pursuant executed in connection herewith or therewith, in each case, without giving effect to this Agreement)any materiality, subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity “Material Adverse Effect” or any Seller that is similar qualification contained or incorporated directly or indirectly in this Agreement (including any exhibitsuch representation or warranty, schedule or other agreement or document delivered pursuant to this Agreement)except in each case, subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller purposes of the representations and warranties set forth in Article 4, Section 4.5 (bFinancial Statements) any unpaid Taxes and Section 4.9(b) (Absence of any Seller under Treasury Regulation Section 1.1502-6 (Changes or any similar provision of state, local or foreign lawEvents), as a transferee or successor, by contract, or otherwise and (cB) the disclosure of lists of items of a material nature or above a specific threshold in which case such qualification shall not be deleted solely for purposes of determining the lists of items that must be disclosed; (ii) any breach or alleged breach of any covenant or obligation of the Sellers; (iii) the amount of any Company Indebtedness, Transaction Expenses or Cash Incentive Amount not deducted from the Closing Cash Payment; (iv) any pre-Closing payments or distributions made, or that were required to be made, under the Profit Participation Agreements; (v) any Incremental Employer PPA Payroll Amount or Incremental Employer Bonus Payroll Amount not deducted from the Earn-out Consideration, Excess Closing Cash or Excess Working Capital, as applicable; (vi) any Adjustments Deficiency payable to Acquiror pursuant to Section 2.3 or Cash Adjustments Deficiency payable to Acquiror pursuant to Section 2.4; (vii) the items listed on Schedule 9.2(a)(vii) of the Disclosure Schedules; (viii) the indemnification provisions of Section 6.10(i)(ii); and (ix) any Covered Taxes and any Taxes of the Acquired Companies or Acquiror resulting from the purchase by the Seller Acquired Companies or Acquiror, immediately after the Closing, of any covenants applicable to such Seller after Equity Securities of CTS or Consolidated Turbine Specialists Canada LLP not owned by the Company at Closing.
(cb) Notwithstanding Section 10.2(aIn the event any Acquired Company suffers, incurs or otherwise becomes subject to any Damages as a result of or in connection with any inaccuracy in, breach or alleged breach of any representation, warranty, covenant or obligation, then (without limiting any of the rights of any Acquired Company as an Acquiror Indemnitee) and 10.2(b)Acquiror shall also be deemed, a Securityholder shall not be deemed by virtue of its ownership of the equity interests of the Acquired Companies, to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.incurred 63
Appears in 1 contract
Samples: Purchase Agreement (Kratos Defense & Security Solutions, Inc.)
Indemnification by the Sellers. (a) From Each member of the Seller Group agrees to, jointly and after the Closing Date, subject severally to the provisions of this Article 10fullest extent permitted by Applicable Law, the Securityholders jointly and severally, except as provided in Section 10.2(b), shall indemnify, defend indemnify and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of the Purchaser and its Affiliates and any and all of their officersrespective partners, directors, shareholdersmanagers, members, employees, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) from and against any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting from:
(i) Any breach of any representation or warranty made by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representativesagents and controlling persons (each, Affiliates, successors and permitted assigns a “Purchaser Indemnified Party”) harmless from and against against, and to pay to each Purchaser Indemnified Party the amount of, any and all Losses that incurred or suffered by such Parties may incur based upon, Purchaser Indemnified Party arising out of, relating to or resulting from of (a) any breach of any representation, warranty or certification made by any member of the Seller Group in any of the representations Transaction Documents or certificates given by any member of the Seller Group to the Purchaser in writing pursuant hereto and warranties set forth in Article 4thereto, (b) any unpaid Taxes breach of or default under any covenant or agreement by any member of the Seller Group to the Purchaser under Treasury Regulation Section 1.1502-6 (any Transaction Document or any similar provision of stateunder the License Agreement, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach claim by or conflict with any Person in connection with, relating to or arising out of any of the Restricted Agreements or any of the transactions contemplated thereunder, (d) any Excluded Liabilities and Obligations and (e) any fees, expenses, costs, liabilities or other amounts incurred or owed by any member of the Seller Group to any brokers, financial advisors or comparable other Persons retained or employed by it in connection with the transactions contemplated by this Purchase and Sale Agreement; provided, however, that the foregoing shall exclude any indemnification to any Purchaser Indemnified Party that results from the bad faith, gross negligence or willful misconduct of any Purchaser Indemnified Party. Any amounts due to any Purchaser Indemnified Party hereunder shall be payable by the Seller Group to such Purchaser Indemnified Party upon demand. Notwithstanding the foregoing, as limited by Applicable Law, (i) Sub SPV Seller shall have no obligations under this Section 7.1 to indemnify and hold harmless any Purchaser Indemnified Party for Losses arising out of any covenants applicable to such action by another member of the Seller after the Closing.
Group and (cii) Notwithstanding Master SPV Seller shall have no obligations under this Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed 7.1 to indemnify another Seller under Section 10.2(a) or 10.2(b) and hold harmless any Purchaser Indemnified Party for Losses arising out of any action by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries)Zealand.
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 1 contract
Indemnification by the Sellers. (a) From Subject to Section 12.1 and after the Closing Date, subject to the provisions of this Article 10Section 12.2, the Securityholders Sellers agree to, and shall, jointly and severally, except as provided in Section 10.2(b)indemnify the Business, shall indemnify, defend and hold harmless Calavo (including Surviving RFG the Purchasers and their Subsidiaries) and each of their respective officers, directors, shareholders, members, employees, other Representativesstockholders, Affiliatesrepresentatives and agents on an after-tax basis and hold each of them harmless, successors against and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) from and against respect of any and all lossesdamage, damagesloss, obligationsdeficiency, liabilities and other costs and expensesliability, includingobligation, without limitationcommitment, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ cost or expense (including the fees and other costs and expenses for investigating of counsel) resulting from, or defending in respect of, any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting fromfollowing:
(ia) Any misrepresentation, breach of warranty, or non-fulfillment of any obligation on the part of any of the Sellers under this Agreement, the Facility Lease, any document relating hereto or thereto or contained in any schedule to this Agreement or from any misrepresentation in or omission from any certificate, schedule, other Contract or instrument delivered by any of the Sellers hereunder or the failure of any representation or warranty made by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound be true and correct as of the ClosingClosing Date.
(b) Any and all Excluded Liabilities.
(c) All products liability Claims arising against or involving the Business or concerning any product manufactured, any breaches shipped, sold or defaults (delivered by or events giving rise to such breaches or defaults) by any on behalf of the RFG Family Entities that occurred Business on or prior to the Closing;
(iv) Any litigationClosing Date related to or resulting from an alleged defect in design, arbitrationmanufacture, investigation materials or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out workmanship of any actions product manufactured, shipped, sold or omissions made delivered by or taken by any on behalf of the Seller or any alleged failure to warn, or any alleged breach of the RFG Family Entities express or implied warranties or representations.
(d) Warranty Claims relating to products manufactured or shipped prior to the Closing;Closing Date.
(Ae) All Taxes of any environmental liability of the RFG Family Entities for Sellers, including federal, state and local environmental liability, together with any taxable period ending interest or penalties thereon or related thereto, that arises or accrues on or prior to the Closing Date, .
(Bf) all Taxes of any member of an affiliated, combined or unitary group of which any Any failure of the RFG Family Entities is or was a member on or Sellers to have good, valid and marketable title to the Acquired Assets, free and clear of all Liens, Claims and Orders.
(g) Any Claim for transaction costs and expenses.
(h) Any failure by the Sellers to comply with applicable bulk sales laws.
(i) Any Claims brought by third parties arising from the operation of the Business prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(cj) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) Any successor or 10.2(b) by reason vicarious liability of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries)the Sellers.
(dk) Notwithstanding anything All demands, assessments, judgments, costs and reasonable legal and other expenses arising from, or in Section 10.5(a) connection with, any action, suit, proceeding or Claim incident to any of the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10foregoing.
Appears in 1 contract
Indemnification by the Sellers. Following the Initial Closing (a) From and after the Closing Dateor, with respect to any Property subject to the provisions of this Article 10a Deferred Closing, the Securityholders following such Deferred Closing), each Seller shall jointly and severally, severally (except as provided in Section 10.2(b)2.7) save, shall indemnifydefend, defend indemnify and hold harmless Calavo the Buyer and its Affiliates (including Surviving RFG the Targets and their the Subsidiaries) ), and each of their officers, directors, shareholders, membersmanagers, employees, other Representatives, Affiliatesagents, successors and permitted assigns (excluding collectively, the Sellers to the extent they serve in any such capacities“Buyer Indemnified Parties”) from and against any and all losses, damages, obligationsliabilities, liabilities and other costs and expensesdeficiencies, includingclaims, without limitationinterest, settlement costsawards, judgments, interestpenalties, penalties costs and expenses (including reasonable attorneys’ fees, accountants’ fees costs and other costs and out-of-pocket expenses for investigating incurred in investigating, preparing or defending any Actionsthe foregoing) (hereinafter collectively, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, to the extent arising out of, relating to of or resulting from:
(ia) Any any breach of any representation or warranty made by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including or any exhibit, schedule Ancillary Agreement or other agreement or document any certificate delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trusthereto;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach of any covenant or agreement by the Seller of the representations and warranties set forth Sellers contained in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and this Agreement;
(c) any claim made by any present or former member, partner or investor of the Sellers or their Affiliates that is based on any actual or alleged act or omission on the part of the general partner or managing member (or the equivalent) of any Seller or its Affiliates, including breach of fiduciary duties (including duties of disclosure) relating to (1) matters arising prior to the applicable Closing or (2) the transactions contemplated hereby or by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo Ancillary Agreements (including Surviving RFG and their Subsidiarieswithout limitation, the negotiation of the terms of the transactions contemplated hereby or thereby).; or
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for divesture of REIT II Excluded Assets or Withdrawn Properties by REIT II or any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations Subsidiary pursuant to this Article 10Section 2.1(b)(ii) or Section 5.10(b).
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Campus Communities Operating Partnership LP)
Indemnification by the Sellers. (a) From and after the Closing DateThe Sellers, subject to the provisions of this Article 10, the Securityholders jointly and severally, except as provided in Section 10.2(b)shall save, shall indemnifydefend, defend indemnify and hold harmless Calavo (including Surviving RFG the Buyers and their Subsidiaries) and each of Affiliates, their respective then-current or former officers, directors, shareholders, members, employees, other Representatives, Affiliates, employees or agents and the successors and permitted assigns of each of the foregoing (excluding collectively, the Sellers to the extent they serve in any such capacities“Buyer Indemnified Parties”, and each individually, a “Buyer Indemnified Party”) from and against any and all losses, damages, obligationsliabilities, liabilities and other costs and expensesdeficiencies, includingclaims, without limitationinterest, settlement costsawards, judgments, interestpenalties, penalties costs and expenses (including reasonable attorneys’ fees, accountants’ fees costs and other costs and out-of-pocket expenses for investigating incurred in investigating, preparing or defending any Actionsthe foregoing) (hereinafter collectively, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon), to the extent arising out of, relating to of or resulting from:
(ia) Any any breach of any representation or warranty made by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement or any Ancillary Agreement or any certificate delivered pursuant hereto (including for purposes of determining the amount of any exhibit, schedule Losses (but not for determining if a breach of any representation or other agreement or document delivered warranty has occurred) pursuant to this AgreementSection 8.2(a), subject to Section 10.2(ball representations and warranties shall be read without any “material”, “materiality” and “material adverse effect” qualifications);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after any breach of any covenant or agreement by the Closing and subject to Sellers contained in this Agreement or any Ancillary Agreement that cannot be cured or has not been cured within 30 days following the provisions of this Article 10date on which such breach arose or occurred; provided, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating 30-day period shall be extended for an additional 30 days if the Sellers were working diligently during the entire initial 30-day period to or resulting from (a) any cure such breach by and the Seller breach is capable of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502being cured within such additional 30-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and day period;
(c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).Excluded Liability; and
(d) any failure to comply with Laws relating to bulk transfers or bulk sales with respect to the transactions contemplated by this Agreement. Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliatescontrary in this Agreement or in any Ancillary Agreement, to the extent their Affiliates receive that any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable Buyer Indemnified Party is indemnified by the Sellers for any obligations of Liberty Fresh FoodsLosses pursuant to any Ancillary Agreement, LLC, if and the Buyers shall not be entitled to indemnification from the extent that Liberty Fresh Foods, LLC defaults on its obligations Sellers for such Losses pursuant to this Article 10Section 8.2.
Appears in 1 contract
Samples: Asset Purchase Agreement (Martha Stewart Living Omnimedia Inc)
Indemnification by the Sellers. (a) From and after the Closing Date, subject Subject to the provisions of this Article 10limitations expressly set forth in Section 9.6, the Securityholders each Seller, jointly and severally, except as provided in Section 10.2(b), shall indemnify, defend will indemnify and hold harmless Calavo (including Surviving RFG and their Subsidiaries) the Purchaser, each of the Purchaser’s Affiliates and each of their officers, respective directors, shareholders, membersofficers, employees, other Representativesagents, Affiliatesconsultants, successors advisors, and permitted assigns representatives (excluding collectively, the Sellers to the extent they serve in any such capacities“Purchaser Indemnified Parties”) from and against any against, and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all of will pay to the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out Purchaser Indemnified Parties the monetary value of, relating to or resulting from:
(i) Any breach of any representation or warranty made by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such incurred or suffered by the Purchaser Indemnified Parties may incur based upon, directly or indirectly arising out of, relating to or resulting from any of the following:
(a) any inaccuracy in or breach of any representation or warranty of the Sellers contained in this Agreement or in any certificate, instrument or document delivered by the Seller of the representations and warranties set forth Sellers in Article 4, connection with this Agreement;
(b) any unpaid Taxes breach of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision covenant of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.Sellers contained in this Agreement;
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller the Sellers’ Representative’s performance of its obligations under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).this Agreement;
(d) Notwithstanding anything any Excluded Liability;
(e) any noncompliance with any bulk sales law or fraudulent transfer law in Section 10.5(aconnection with the transactions contemplated by this Agreement;
(f) any Liability under the WARN Act or similar state or local Law resulting from any action by the Sellers before the Closing or by the Purchaser’s decision not to hire any individual formerly employed by the Sellers;
(g) any Encumbrance existing on the Purchased Assets at Closing that arose in respect of Liabilities incurred by the Sellers on or prior to the contrarydate hereof; and
(h) any Proceedings, Xxdemands or assessments incidental to any of the matters set forth in clauses (a) through (g) above. X. CatchotFor purposes of determining under this Section 9.1, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, with respect to the extent their Affiliates receive calculation of any payments from Liberty Fresh FoodsLosses associated with an inaccuracy or breach of any representation, LLC) warranty or covenant, the parties agree that all references to “material,” “materially” or “materiality,” or to whether a breach would have a Material Adverse Effect, will be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10disregarded.
Appears in 1 contract
Indemnification by the Sellers. (a) From and after Each of the Sellers agrees subsequent to the Closing Date, subject to the provisions of this Article 10, the Securityholders jointly and severally, except as provided in Section 10.2(b), shall indemnify, defend indemnify and hold the Buyer Parties harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) from and against any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating Damages which may be sustained or defending suffered by any Actions, claims and proceedings (all of them arising out of or based upon any of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting fromfollowing matters:
(ia) Any fraud, intentional misrepresentation or the cause or knowledge of a deliberate or willful breach of any representation representations, warranties or warranty made by covenants of the Sellers in under this Agreement (including or in any exhibitcertificate, schedule or other agreement or document exhibit delivered pursuant to this Agreementhereto (collectively, “Fraud Claims”), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From any liability of Tritton for Taxes arising from their respective activities, assets and after all events and transactions on the Closing Date and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4Sections 5.18 and 5.21 hereof and any covenant with respect to Taxes or tax related matters set forth herein or in any related agreement (collectively, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law“Tax Claims”), as a transferee or successor, by contract, or otherwise and ;
(c) any breach by of the Seller of any covenants applicable to such Seller after the Closing.
representations and warranties set forth in Section 5.22 hereof (c) Notwithstanding Section 10.2(a) and 10.2(b“Environmental Claims”), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).;
(d) Notwithstanding anything any claim by any Person that Tritton does not own all right, title and interest in Section 10.5(a) the industrial design or tooling for its headphone products (excluding the in-line volume control unit, the in-line break away cable, the audio control box and flexible microphone cable pertaining to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, AX Pro; the audio control box with respect to the extent their Affiliates receive any payments from Liberty Fresh FoodsAx 720; the head rail assembly, LLC) agree to be jointly extension arms and severally liable for any obligations of Liberty Fresh Foods, LLC, if and flexible microphone tubing relating to the extent that Liberty Fresh FoodsAX 180), LLC defaults on its obligations free and clear of any Encumbrances (“Manufacturing Ownership Claims”);
(e) any breach of the representations and warranties set forth in Sections 4.1, 4.2, 4.6, 5.1, 5.3, 5.5 and 5.9 hereof (collectively, “Fundamental Claims”); and
(f) other than Fraud Claims, Tax Claims, Environmental Claims, Manufacturing Ownership Claims and Fundamental Claims, any other breach of any representation, warranty or covenant of the Sellers under this Agreement or in any schedule or exhibit delivered pursuant to this Article 10hereto, or by reason of any Proceeding asserted or instituted growing out of any matter or thing constituting a breach of such representations, warranties or covenants (collectively, “General Claims”).
Appears in 1 contract
Samples: Stock Purchase Agreement (Mad Catz Interactive Inc)
Indemnification by the Sellers. (a) From and after the Closing Date, subject to the provisions of this Article 10, the Securityholders jointly and severally, except as provided in Section 10.2(b), The Sellers shall indemnify, defend and hold harmless Calavo (including Surviving RFG Purchaser and their Subsidiaries) and each of their officersits employees, directors, shareholdersofficers, membersrepresentatives and affiliates, employeesincluding the Company after the Closing (each an "Indemnified Party" and collectively, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities"Indemnified Parties") from and against against, and pay or reimburse, as the case may be, the Indemnified Parties for, any and all losses, claims, liabilities, damages, obligationsdeficiencies, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ including the fees and expenses of attorneys, accountants and other costs professionals, (each a "Loss" and expenses for investigating collectively "Losses") paid, incurred, accrued or defending sustained by the Indemnified Parties, or any Actionsone of them, claims and proceedings (all of the foregoing being collectively referred to herein directly or indirectly, as “Losses”) that such parties may incur based upon, arising out a result of, relating to or resulting from:
(i) Any any breach or inaccuracy of any a representation or warranty made by of the Sellers or the Company contained in (A) this Agreement (including any exhibitthe Company Disclosure Schedule) as of the date of this Agreement or on and as of the Closing Date with the same force and effect as if made on and as of the Closing Date, schedule or other agreement or document except for those representations and warranties which address matters only as of a particular date (which representations shall be deemed to have been made only as of such particular date) (B) in the certificate delivered pursuant to Section 7.3(r) of this Agreement or (C) any other agreement executed by the Sellers or the Company in connection with this Agreement), subject to Section 10.2(b);
(ii) Any breach of, any failure by the Sellers or failure the Company to perform, perform or comply with any covenant or other agreement of any RFG Family Entity or any Seller that is applicable to it contained in this Agreement (including or any exhibit, schedule or other agreement executed by the Sellers or document delivered pursuant to the Company in connection with this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as Company's Retained Environmental Liabilities;
(iv) any Third Party Expenses of the Closing, any breaches Company or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred Sellers incurred prior to the Closing;
(ivv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule failure by Sellers to this Agreement), whether brought before or after obtain the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including Sage Mill Releases pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law6.17 hereto; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; andor
(vi) All payments any U.S. federal or state income Tax liability (including interest and other Losses made penalties), resulting from the Company failing to qualify as an S corporation under section 1361(a)(1) of the Code (or incurred by any RFG Family Entity after state counterpart) for every taxable year on or before the Closing Date that are attributable as to which the Company filed or files Tax Returns claiming status as an S corporation; There shall be no right of contribution from the Company or Purchaser with respect to any guarantees executed Loss claimed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closingan Indemnified Party.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 1 contract
Indemnification by the Sellers. (a) From and after the Closing Date, subject to each of the provisions of this Article 10, the Securityholders Sellers shall jointly and severally, except as provided in Section 10.2(b), shall indemnify, defend severally indemnify and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) Buyer Group Member from and against any and all losses, damages, obligations, liabilities Losses and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating Expenses incurred by such Buyer Group Member in connection with or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting from:
(i) Any any breach of any representation or warranty made by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement alleged breach or failure to perform, by the Company (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes or any Seller of any member of an affiliatedtheir respective agreements, combined covenants or unitary group obligations in this Agreement or in any Company Ancillary Agreement or Seller Ancillary Agreement;
(ii) any breach, or alleged breach, of which any warranty or the inaccuracy, or alleged inaccuracy, of any representation or warranty of the RFG Family Entities is Company or was a member any Seller contained or referred to in this Agreement;
(iii) any failure of the Sellers or the Company to obtain any consent set forth in Schedule 4.3(b);
(iv) any salary, bonus or other cash or non-cash compensation due from the Company to any present or former employee or consultant or any other Person pursuant to any written or oral agreement or arrangement in existence on or prior to the Closing DateDate that is not set forth on Schedule 4.16(h); provided, including pursuant however, that the Sellers shall be required to Treasury Regulation indemnify and hold harmless Buyer Group Members under clause (ii) of this Section 1.1502-6 or any analogous or similar state7.1(a) only if Losses and Expenses thereunder exceed $ in the aggregate, local or foreign Lawbut if such Losses and Expenses exceed such amount Sellers shall, subject to the next proviso, be required to indemnify and hold harmless Buyer Group Members for the entire amount of such Losses and Expenses without deduction; and provided, further, that the maximum aggregate amount that any Seller shall be required to indemnify and hold harmless all Buyer Group Members under clause (Cii) any of this Section 7.1(a) with respect to Losses and all Taxes of any Person Expenses incurred by Buyer Group Members (other than the RFG Family Entities) imposed on the RFG Family Entities Loss and Expense incurred as a transferee result of breaches or successorinaccuracies of the representations and warranties of the Company and the Sellers contained in Sections 4.1, by Contract or pursuant 4.7 and 6.2, as to any Law, which Taxes relate this proviso shall have no effect) shall be limited to an event or transaction occurring on or prior amount equal to the Closing Date; andsum of (A) the Purchase Price and (B) the Xxxxxx Payment, multiplied by such Seller's Purchased Membership Interest Percentage.
(vib) All payments and other Losses made or incurred by any RFG Family Entity The indemnification provided for in this Section 7.1 shall terminate two years after the Closing Date (and no claims shall be made by any Buyer Group Member under this
Section 7.1 thereafter), except that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA indemnification obligation of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; andSellers shall continue as to:
(viii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4Sections 4.1, 4.3, 4.7 and 4.23, the covenants of each of the Sellers set forth in Sections 8.2 and 8.12 and the representations and warranties and covenants of the Sellers set forth in Section 6.2, as to all of which no time limitation shall apply;
(bii) the covenants set forth in Sections 6.1 and 8.13, as to which the indemnification provided for in this Section 7.1 shall terminate one year after the expiration of the period provided for therein; and
(iii) any unpaid Taxes Loss or Expense of which any Seller under Treasury Regulation Buyer Group Member has notified each of the Sellers in accordance with the requirements of Section 1.1502-6 (7.3 on or any similar provision of state, local or foreign lawprior to the date such indemnification obligation would otherwise terminate in accordance with this Section 7.1(b), as a transferee or successor, by contract, or otherwise and (c) any breach by to which the Seller indemnification obligation of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder Sellers shall not be deemed to continue until the liability of each of the Sellers shall have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations been determined pursuant to this Article 10VII, and each Seller shall have reimbursed all Buyer Group Members for the full amount of such Loss and Expense for which such Seller is responsible in accordance with this Article VII.
Appears in 1 contract
Samples: Purchase Agreement
Indemnification by the Sellers. (a) From and after the Closing Date, subject to the provisions of this Article 10Closing, the Securityholders jointly Buyer and severally, except as provided in Section 10.2(b), shall indemnify, defend and hold harmless Calavo its Affiliates (including Surviving RFG the Company and their its Subsidiaries) and each of their officers, directors, shareholders, members, employees, other the respective Representatives, Affiliates, successors and permitted assigns of each of the foregoing (excluding the “Buyer Indemnified Parties”) shall be indemnified, defended and held harmless by the Sellers to solely from the extent they serve in any such capacities) Indemnity Escrow Fund, from and against any and all lossesLosses asserted against, damagesincurred, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating sustained or defending suffered by any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upona result of, arising out of, of or relating to or resulting fromto:
(i) Any any breach of any representation or warranty made by the Sellers in this Agreement Company (including any exhibit, schedule or other agreement or document delivered pursuant with respect to the Sellers) contained in Article III of this Agreement), subject to Section 10.2(b);
(ii) Any any breach of, or failure to perform, any agreement of any RFG Family Entity covenant or any Seller that is agreement by the Sellers or the Company contained in this Agreement Agreement; and
(including any exhibitiii) the reclassification of personnel as described in Schedule 3.11(c) of the Disclosure Letter.
(b) Notwithstanding the foregoing, schedule or the Tishman Group, on the one hand, and the Xxxxxxxxxx Group, on the other agreement or document delivered pursuant to this Agreement)hand, shall severally, and not jointly and not jointly and severally, subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing9.14, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns the Buyer Indemnified Parties from and against any and all Losses that such Parties may incur based uponasserted against, incurred, sustained or suffered by any of the foregoing as a result of, arising out of, of or relating to or resulting from to:
(ai) any breach of any representation, warranty, covenant or agreement in the Core Representations (other than Sections 4.1, 4.2, 4.4 and 4.6), Section 5.2, Section 5.6 and Article VI;
(ii) medical benefits to which an employee of the Company may be entitled by reason of his or her retirement pursuant to any plan, policy, program, agreement or arrangement sponsored by the Seller Company prior to Closing (including the Tishman Realty and Construction Co. Group Health Plan or any successor plan), other than benefits required to be provided pursuant to Section 4980B of the representations and warranties set forth in Article 4Code, (b) any unpaid Taxes Section 601 of any Seller under Treasury Regulation Section 1.1502-6 (ERISA or any similar provision of state, local state law; and
(iii) the Tishman Construction Corporation Deferred Compensation Plan or foreign law), as a transferee any similar or successor, by contract, or otherwise and (c) any breach successor plan sponsored by the Seller of any covenants applicable Company prior to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 1 contract
Indemnification by the Sellers. (a) From and after the Closing Date, subject Subject to the provisions limits set forth in this Section 9.1, each of this Article 10, the Securityholders jointly and severally, except as provided in Section 10.2(bRedeeming Shareholders agree severally (but not jointly), shall in proportion to the Ownership Allocation, to indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their Purchaser, its officers, directors, shareholdersagents and Affiliates (the "Purchaser Indemnified Persons"), members, employees, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) harmless from and against in respect of any and all losses, damages, obligations, liabilities and other costs and expenses, reasonable expenses (including, without limitation, settlement costsreasonable expenses of counsel) (collectively, judgments"Losses"), interestthat they may incur arising out of or due to any inaccuracy of any representation or the breach of any warranty, penalties and reasonable attorneys’ feescovenant, accountants’ fees and undertaking or other costs and expenses for investigating agreement by such Seller contained in this Agreement or defending the Disclosure Schedule, determined without regard to any Actionsqualification as to materiality or Material Adverse Effect set forth therein; PROVIDED, claims and proceedings (all HOWEVER, that the Sellers shall not have any liability to Purchaser as a result of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting from:
(i) Any breach of any representation or warranty made by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG extent that Purchaser had actual knowledge that such representation or its Subsidiaries is a party warranty was untrue or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or incorrect prior to the Closing Date. Anything to the contrary contained herein notwithstanding, none of the Purchaser Indemnified Persons shall be entitled to recover from the Sellers for any claims for indemnity or damages with respect to any inaccuracy or breach of any representations or warranties or breach of any covenants, undertakings or other agreements, whether such claims are brought under this Section 9.1(a) or otherwise, (Bi) with respect to any individual claim in an amount less than $10,000 (it being understood that multiple claims arising from the same operative facts or circumstances shall be deemed as a single claim) and (ii) unless and until the total of all Taxes such claims in respect of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including Losses pursuant to Treasury Regulation this Section 1.1502-6 9.1(a) exceeds $570,000, and then only for the amount by which such claims exceed such amount; PROVIDED, HOWEVER, that, none of Purchaser or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their its officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns agents or Affiliates shall be entitled to recover from and against any and all Losses that such Parties may incur based upon, arising out of, relating Seller pursuant to or resulting from this Section 9.1(a) more than forty percent (a40%) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, proceeds received by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after pursuant to this Agreement and/or the Closing.
Option Agreement (c) Notwithstanding but excluding, with respect to Xxxxxx, the fee payable pursuant to Section 10.2(a) and 10.2(b5.11 hereof); PROVIDED FURTHER, that any recovery to be made by a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officerPurchaser Indemnified Person hereunder against Xxxxxx, directoronce finally determined, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliatesshall, to the extent their Affiliates receive any payments from Liberty Fresh Foodsoutstanding, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foodsdeemed, LLCat Xxxxxx'x option, setoff against the principal amount outstanding under the Notes, then, if and to necessary, against the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10interest payable thereon.
Appears in 1 contract
Samples: Recapitalization and Stock Purchase Agreement (Color Spot Nurseries Inc)
Indemnification by the Sellers. Upon the terms and subject to the conditions set forth herein, each Seller jointly and severally agrees to indemnify each of the Purchaser Indemnified Parties against, and agrees to hold each of them harmless from, any and all Losses incurred or suffered by them to the extent relating to, arising out of or resulting from any of the following:
(a) From and after the Closing Date, subject to the provisions of this Article 10, the Securityholders jointly and severally, except as provided in Section 10.2(b), shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) from and against any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting from:
(i) Any breach of or any inaccuracy in any representation or warranty made by the Sellers any Seller in this Agreement (including or any exhibit, schedule Related Agreement or other agreement or any document delivered pursuant by any Seller at the Closing; provided, that (i) in the case of all representations and warranties, except for Title and Authorization Warranties and Tax Warranties, a notice of the Purchaser Indemnified Party’s claim shall have been given to this Agreement)the Seller Representative not later than the close of business on the second anniversary of the Closing Date and (ii) in the case of Tax Warranties, subject a notice of the Purchaser Indemnified Party’s claim shall have been given to Section 10.2(b)the Seller Representative not later than the close of business on the Tax Statute of Limitations Date;
(iib) Any any breach of, by any Seller of or failure by any Seller to performperform any covenant, any obligation or agreement of any RFG Family Entity Seller set forth or any Seller that is contained contemplated in this Agreement (including or any exhibit, schedule Related Agreement or other agreement or any document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to Seller at the Closing;
(ivc) Any litigationthe Withdrawn Corporation Assets, arbitrationthe Withdrawn Corporation Obligations, investigation or the Excluded Assets, the Excluded Obligations or, other claim or legal proceeding (including, without limitationthan the Assumed Obligations, any claims and legal proceedings that are listed on a schedule other obligations or liabilities relating to this Agreement), whether brought before or after the Closing, that is based upon or arises arising out of any actions the ownership or omissions made or taken by any Seller or any operation of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending Assets on or prior to the Closing Date, ;
(Bd) all Taxes of any member of an affiliated, combined obligations or unitary group of which liabilities relating to or arising from any of the RFG Family Entities is Sweet Paper Debt;
(e) any obligations or was a member liabilities relating to or arising from any product liability or warranty claims based on products or services sold by any Sweet Paper Entity on or prior to the Closing DateDate (except to the extent that any Purchaser Indemnified Party collects reimbursements for such Losses from insurance proceeds or from indemnification payments received from one or more third parties);
(f) any obligations or liabilities relating to or arising from the matters set forth on Schedule 12.2(f);
(g) any obligations or liabilities relating to or arising from AMJEMS, including Inc. or Mira Corp.;
(h) any obligations or liabilities relating to or arising from the failure of the Corporation to obtain the consent of GMAC to the sublease by the Corporation to Seaboard Warehouse Terminal Ltd. of a portion of the Leased Real Property that is leased by the Corporation pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and the Current Xxxxxx Real Property Lease;
(Ci) any and all Taxes obligations or liabilities relating to or arising from any breach of or default under any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred Current Third Party Real Property Lease by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Sweet Paper Entity prior to the Closing Date if Sellers fail to deliver to Purchaser an estoppel certificate reasonably satisfactory to Purchaser duly executed by the lessor under such Current Third Party Real Property Lease effective as of the Closing;
(j) any obligations or liabilities relating to or arising from the matters set forth on Schedule 12.2(j);
(k) any obligations or liabilities relating to or arising from any third party claim that any Sweet Paper Entity violated the Americans With Disabilities Act, or any rules, regulations and guidelines promulgated thereunder, or any similar state Law, prior to the Closing; provided, however, that a notice of the Purchaser Indemnified Party’s claim with respect to this Section 12.2(k) shall have been given to the Seller Representative not later than the close of business on the second anniversary of the Closing Date;
(l) any obligations or liabilities relating to or arising from the failure of any obligations Sweet Paper Entity to be licensed or qualified to do business and be in good standing as a foreign corporation in each jurisdiction where the nature of the properties owned, leased or operated by such Sweet Paper Entity or the business transacted by such Sweet Paper Entity require such licensing or qualification (notwithstanding the disclosure of any Seller information on Schedule 5.1(a) or any other Schedule hereto);
(m) any obligations or liabilities relating to or arising from any motor vehicle lease agreements relating to any vehicles used by any Shareholder;
(n) any obligations or liabilities relating to or arising from the matter set forth on Schedule 12.2(n);
(o) any obligations or liabilities relating to or arising from any breach by Xxxxxx Family Holdings LLC or JEMS of Miami, Inc. of any Affiliate obligation (to be set forth in the New Xxxxxx Real Property Lease) that is described in the “Maintenance and Repair” section of Exhibit 7.28;
(p) any Sellerobligations or liabilities relating to or arising from the Stock Redemption Agreement;
(q) any obligations, liabilities or Taxes relating to or arising from any Bonus Agreement or any Secular Trust Agreement (including without limitations the guarantees executed by GHCA any obligations or liabilities relating to or arising from any claim regarding any right of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.continued employment under any Bonus Agreement or any Secular Trust Agreement); and
(viir) Any litigationany damages, arbitration, investigation fees or other claim amounts claimed by the lessor (or legal proceeding, whether brought before or after the Closing, that is based upon or arises out by any Person claiming on behalf of the Roll Up Transaction lessor, including the lessor’s attorneys and other agents or representatives) under any actions Real Property Lease set forth at item 13 or omissions made or taken by the Trust;
(bitem 14 of Schedule 5.9(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting arising from (a) the failure to obtain any breach consent or approval that is required under such Real Property Lease in connection with the performance of this Agreement by the Seller parties hereto and the consummation of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closingtransactions contemplated hereby.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason 10. This Amendment Number One is solely for the benefit of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliatesparties hereto and, to the extent expressly provided herein, their Affiliates receive respective Affiliates, and no provision of this Amendment Number One shall be deemed to confer upon other third parties any payments from Liberty Fresh Foodsremedy, LLC) agree to claim, liability, reimbursement, cause of action or other right.
11. This Amendment Number One may be jointly executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and severally liable for any obligations the same instrument.
12. The provisions of Liberty Fresh Foodsthe Agreement, LLCas amended hereby, if shall remain in full force and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10effect.
Appears in 1 contract
Samples: Purchase and Sale Agreement (United Stationers Inc)
Indemnification by the Sellers. (a) From and after the Closing Date, subject to the provisions of this Article 10, the Securityholders jointly and severally, except as provided in Section 10.2(b), shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) from and against any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting from:
(i) Any breach of any representation or warranty made by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10X, each Seller severally (and not jointly) shall indemnify, defend agrees to indemnify and hold harmless Calavo the Acquiror and its Affiliates (including Surviving RFG including, following the Closing, the Company and their the Transferred Subsidiaries) and each of their officersrespective Representatives (collectively, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns the “Acquiror Indemnified Parties”) from and against any and all Losses that such incurred or suffered by the Acquiror Indemnified Parties may incur based upon, arising out of, relating to or resulting from or relating to:
(ai) any breach by or inaccuracy of any Seller Representation of such Seller contained in this Agreement as of the Closing Date as though made on such date (or, in the case of any such Seller Representation made as of another stated date, only as of such date);
(ii) any breach or inaccuracy of any representation or warranty of the Company contained in this Agreement as of the Closing Date as though made on such date (or, in the case of any such representations and warranties made as of another stated date, only as of such date);
(iii) any breach of any covenant or agreement of the Sellers or of any Pre-Closing Covenant of the Company contained in this Agreement; or
(iv) the amount of any Capital Stock Payments, Affiliate Agreement Payments or Company Transaction Expenses to the extent not included in the calculation of the Purchase Price as finally determined either pursuant to Section 2.04 or Section 2.05; provided, however, that the Sellers shall have no indemnification obligations under this Section 10.02(a)(iv) with respect to any amounts that (x) the Acquiror asserted, during the negotiation and dispute resolution process pursuant to Section 2.04 or Section 2.05, were Capital Stock Payments, Affiliate Agreement Payments or Company Transaction Expenses and (y) were not included in the Purchase Price as finally determined either pursuant to Section 2.04 or Section 2.05; provided, that the Sellers shall only be liable to the Acquiror Indemnified Parties for such Losses pursuant to this Section 10.02(a) in proportion to their respective Pro-Rata Share of such Losses; provided, that nothing in this Agreement shall restrict the Sellers from allocating responsibility for claims pursuant to Section 10.02(a)(i) solely amongst themselves in a different manner; and provided, further, that for purposes of determining the inaccuracy or breach of any representations or warranties of the Sellers or the Company contained in this Agreement (other than the representations and warranties set forth in Article 4Section 4.05(c) and Section 4.06), any materiality or “Company Material Adverse Effect” qualifications in such representations and warranties shall be disregarded.
(b) any unpaid Taxes Notwithstanding anything to the contrary contained herein, (i) the Acquiror Indemnified Parties shall recover the amount of any Seller Losses for which they are finally determined to be entitled to indemnification under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise this Article X solely from the Escrow Account and (cii) the Acquiror Indemnified Parties shall not be entitled to indemnification under this Agreement for any breach by Losses in excess of the Seller amounts then remaining in the Escrow Account; provided, however, that this limit shall not apply to any Losses in respect of any covenants claims for fraud, in which case the Acquiror Indemnified Parties shall have all rights available to them under applicable Law to recover the amount of such Seller after Losses directly from the ClosingSellers (which Sellers shall be severally and not jointly liable for such Losses).
(c) Notwithstanding Section 10.2(a) and 10.2(b)anything to the contrary contained in this Agreement, a Securityholder the Acquiror Indemnified Parties shall not be deemed entitled to have agreed to indemnify another Seller indemnification under Section 10.2(a10.02(a)(ii) (other than for indemnification for any breach or 10.2(binaccuracy of any representation or warranty set forth in Sections 4.01, 4.02 or 4.25): (i) by reason with respect to any claim (or series of related claims arising from the same underlying facts and circumstances) unless such other claim (or series of related claims arising from the same underlying facts and circumstances) involves Losses in excess of $250,000 (nor shall any such excluded claim or series of related claims be applied to or considered for purposes of calculating whether the Indemnification Threshold has been satisfied under clause (ii) below of this Section 10.02(c)); and (ii) unless and until the aggregate amount of the Acquiror Indemnified Parties’ Losses for which the Acquiror Indemnified Parties are finally determined to be otherwise entitled to indemnification under Section 10.02(a)(ii) exceeds an amount equal to $6,900,000 (the “Indemnification Threshold”), in which case the Sellers shall be responsible (with respect to each such Seller, in proportion to such Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(dPro-Rata Share) Notwithstanding anything in for all Acquiror Indemnified Parties’ Losses for which the Acquiror Indemnified Parties are finally determined to be otherwise entitled to indemnification under Section 10.5(a10.02(a)(ii) subject to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to limitations set forth in this Article 10Agreement.
Appears in 1 contract
Indemnification by the Sellers. (a) From The Sellers, jointly and after the Closing Date, severally and subject to the provisions applicable limits of this Article 10liability hereinafter set forth, the Securityholders jointly and severallyagree to defend, except as provided in Section 10.2(b), shall indemnify, defend indemnify and hold harmless Calavo the Buyer (including Surviving RFG and their Subsidiaries) and each of their its directors, officers, directors, shareholders, members, employees, other Representatives, employees and Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) harmless from and against with respect to any and all claims, liabilities, losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating (including without limitation the reasonable fees and disbursements of counsel), net of insurance proceeds received (collectively, "Losses"), incurred by the Buyer or defending any Actionsof its directors, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based uponofficers, employees or Affiliates, in connection with or arising out of, relating to or resulting from:
(i) Any any breach by the Sellers of any representation or warranty contained in Article 5 hereof;
(ii) any breach by the Sellers of any covenant, obligation or undertaking made by the Sellers in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior Retained Liabilities, including without limitation any Retained Environmental Liabilities and the Sellers' failure to timely discharge any of the Closing;Retained Liabilities; and
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule Defective Pricing Claims relating to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken proposals submitted by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity Sellers prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations and relating to the guarantees executed by GHCA Businesses which have not resulted in definitive contracts as of the obligations Closing Date, and any failure of LIG Partners, LLC owed such proposals to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out comply as of the Roll Up Transaction Closing with government regulations applicable to the making of such proposals, but in each case only if the Buyer does not subsequently amend or any actions modify the costs or omissions made or taken by the Trust;
(b) From and pricing data forming a part of such proposals after the Closing Date (other than any amendment or modification relating solely to the transfer of such proposal to the Buyer pursuant to this Agreement) ("Open Bid Claims")
(v) any claim made or suit brought against Buyer prior to the fifth anniversary of the Closing Date alleging that the Buyer's making, having made, using, selling, offering for sale, distributing, exporting or importing EO/FPA Products (as defined below) or practicing EO/FPA Processes (as defined below) in connection with the FPA Business and/or Ground EO Business (a "Covered Activity") infringes any intellectual property right of any third party; provided, however, that (1) Sellers shall be given exclusive control of the defense of such claim or suit and all negotiations relative to the settlement thereof, but Buyer shall have the right to be represented in any such claim or suit by advisory counsel of its own selection at is own expense and Sellers shall consult with any such advisory counsel regarding the defense of any such claim or suit and advise any such advisory counsel with respect to the settlement of such claim or suit, (2) Buyer assists Sellers by providing all information in Buyer's possession relevant to the defense or settlement of any such claim or suit, which is reasonably requested by Sellers, (3) Buyer promptly informs Sellers in writing of any such claim of infringement or threat of any such claim (provided, however, that the failure to provide such notice shall not relieve Sellers of their obligations hereunder except to the extent Sellers are prejudiced by such failure), (4) the claimed infringement arises as the result of Covered Activities related to the EO/FPA Products or EO/FPA Processes and not as a result of any modifications thereto made by Buyer or as a result of combinations of any EO/FPA Product with other components or any combination of any EO/FPA Process with any other process, (5) if the claimed infringement can be avoided by modifications to the EO/FPA Products requested by Sellers, Buyer agrees to make such modifications at Sellers' expense, provided that the form, fit and function of the EO/FPA Product and the manufacturing cost (including capital costs) for such EO/FPA Product is not adversely affected in any material way, (6) if the claimed infringement can be avoided by modifications to the applicable EO/FPA Process requested by Sellers, Buyer agrees to make such modification at Sellers' expense, provided that the utility of the EO/FPA Process and any related manufacturing cost (including capital costs) is not adversely affected in any material way, and (7) the Covered Activity is authorized by and within the scope of any applicable license grant, the claimed infringement is not the result of Buyer's loss of any intellectual property rights arising out of Buyer's breach of any contractual obligations and the claimed infringement is not a claim of infringement of TI Licensed Intellectual Property made by TI based on Buyer's activities outside the scope of the sublicense grant to Buyer of TI Licensed Intellectual Property. Sellers' liability under this paragraph (v) is subject to the applicable provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.13.4
Appears in 1 contract
Indemnification by the Sellers. Each Seller, individually and separately with respect to Section 10.1(a)(i) hereof and Section 10.1(a)(iii) hereof to the extent relating to a breach of the covenants contained in Section 7.2 hereof, and jointly and severally with respect to Sections 10.1(a)(ii), (aiii) From (other than with respect to a breach of any covenant contained in Section 7.2 hereof) and (iv) hereof, shall reimburse, defend, indemnify and hold harmless the Buyer and its affiliates (including without limitation after the Closing Date, subject to the provisions of this Article 10, the Securityholders jointly Company and severally, except as provided in Section 10.2(b), shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiariesits Subsidiary) and each of their officers, directors, shareholdersofficers and other employees (each such person and its, membershis or her heirs, employeesadministrators, other Representatives, Affiliatespersonal representatives, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) from and against any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all of the foregoing being collectively is referred to herein as “Losses”a "Buyer Indemnified Party") that such parties may incur based uponfrom, against and in respect of:
(a) any and all liabilities, losses, claims, damages, actions, suits, proceedings, demands, assessments, adjustments, diminutions in value, settlement payments, deficiencies, costs and expenses (including without limitation reasonable attorneys' fees and expenses) (collectively, "Claims") suffered, sustained, incurred or paid by any Buyer Indemnified Party resulting from or arising out of, relating to or resulting from:
(i) Any any breach of any representation or warranty made by the Sellers of such Seller in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b)4 hereof;
(ii) Any any breach of, or failure to perform, any agreement of any RFG Family Entity representation or warranty of any Seller that is contained in this Agreement (including other than Section 4 hereof) or in any exhibit, schedule certificate or other agreement writing delivered by or document delivered pursuant to this Agreement)on behalf of any Seller, subject to Section 10.2(b)the Company or its Subsidiary in connection herewith;
(iii) With respect to any nonfulfillment of any covenant or agreement on the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as part of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;Seller set forth in this Agreement; or
(iv) Any litigation, arbitration, investigation the assertion against any Buyer Indemnified Party of any liability or other claim obligation relating to or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises arising out of any actions the business, operations, assets or omissions made or taken by any Seller activities of the Company, its Subsidiary or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on predecessor thereof at or prior to the Closing Dateto the extent such liabilities or obligations are not fully reflected in the finally determined Closing Balance Sheet, (B) all Taxes of any member of an affiliated, combined or unitary group of which any out of the RFG Family Entities is actions or was a member on omissions of the Company's, its Subsidiary's or any predecessor's directors, officers, stockholders, partners, employees or agents at or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign LawClosing; and and
(Cb) any and all Taxes of any Person actions, suits, claims, proceedings, investigations, allegations, demands, assessments, audits, fines, judgments, costs and other expenses (other than the RFG Family Entitiesincluding without limitation reasonable attorneys' fees and expenses) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant incident to any Law, which Taxes relate to an event of the foregoing or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions enforcement of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing10.1.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 1 contract
Samples: Stock Purchase Agreement (K Tron International Inc)
Indemnification by the Sellers. (a) From Subject to the provisions and limitations of this Article IX, from and after the Closing Date, subject to the provisions of this Article 10each Seller, the Securityholders jointly severally and severally, except as provided in Section 10.2(b)not jointly, shall indemnify, defend indemnify and hold harmless Calavo Purchaser and its Affiliates (including Surviving RFG and their Subsidiariesthe “Purchaser Indemnified Parties”) and each of their officersthe Company and its Affiliates (other than the Sellers) (the “Company Indemnified Parties” and, directorstogether with the Purchaser Indemnified Parties, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities“Indemnified Parties”) from and against any and all lossesclaims, liabilities, damages, losses, demands, obligations, liabilities deficiencies, costs, and other costs and expensesexpenses of any nature whatsoever, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees fees, and all costs of investigation, and other costs and expenses for investigating or of defending any Actionsactions or claims, claims amounts of judgment and proceedings amounts paid in settlement, whether or not involving a Third Party Claim (all of the foregoing being collectively referred to herein as the “LossesDamages”) that such parties may incur based upon), suffered by an Indemnified Party resulting from, arising out of, relating to of or resulting from:
based upon (without duplication) (i) Any any inaccuracy in or breach of any representation of the representations or warranty warranties made by the Sellers Seller in this Agreement (including or in any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Ancillary Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries he is a party or is otherwise bound as (ii) any breach or non-fulfillment of any covenants, agreements or obligation of the ClosingSellers set forth in this Agreement or in any Ancillary Agreement to which he is a party (each claim for indemnification made by an Indemnified Party pursuant to this Article IX, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;a “Claim”).
(ivb) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, The Indemnified Parties shall not be entitled to assert any claims and legal proceedings that are listed on a schedule Claim for indemnification pursuant to this Agreement), whether brought before or Section 9.02 for Claims for indemnification with time restrictions under Section 9.01(a) after the Closingdates provided in Section 9.01(a); provided, however, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending if on or prior to the Closing Date, such date a Notice of Claim (Bas defined below) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including shall have been provided pursuant to Treasury Regulation Section 1.1502-6 9.05 hereof for such indemnification, the Indemnified Parties shall continue to have the right to be indemnified with respect to such indemnification claim until such claim for indemnification has been satisfied or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities otherwise resolved as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of provided in this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller of the representations and warranties set forth in Article 4, (b) any unpaid Taxes of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the ClosingIX.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 1 contract
Samples: Stock Purchase Agreement (Ilustrato Pictures International Inc.)
Indemnification by the Sellers. (aSubject to Section 12.2(g) From and after the Closing Date, subject to the provisions of this Article 1012.4, the Securityholders Sellers, jointly and severally, except as provided in Section 10.2(b)agree to indemnify the Purchaser and its Affiliates (each, shall indemnifya “Purchaser Indemnified Party”) against, defend and agree to hold the Purchaser Indemnified Parties harmless Calavo (including Surviving RFG from, any and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns (excluding all Losses incurred or suffered by the Sellers Purchaser Indemnified Parties to the extent they serve in any such capacities) from and against any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, resulting from or relating to or resulting fromany of the following:
(ia) Any any breach of or any inaccuracy in any representation or warranty made by the Sellers any Seller in this Agreement (including or in any exhibit, schedule or other agreement or document delivered pursuant to this Related Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after any breach of or failure by any Seller to perform any covenant or agreement of such Seller set out in this Agreement or any Related Agreement;
(c) any Excluded Asset;
(d) any Retained Obligation;
(e) any liability for Taxes with respect to the Chinese Joint Venture attributable to any Pre-Closing Tax Period or the portion of any Straddle Period ending on the day immediately preceding the Closing and subject Date (determined in accordance with Section 6.10(b)) in excess of the amount reserved for such Tax liability as reflected in the Closing Statement;
(f) any noncompliance by any Seller with any Bulk Sales Laws or fraudulent transfer Law in respect of any of the transactions contemplated hereunder; or
(g) Notwithstanding any provision of this Agreement to the provisions contrary, (i) the sole and exclusive remedy of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Purchaser Indemnified Party with respect to any Losses that such Parties may incur based upon, arising out of, of or relating to any capital expenditures that may be necessary (A) to resolve or resulting from xxxxx Environmental Violations or matters of non-compliance with Environmental Law or (aB) any to restore the Business to compliance therewith shall be a claim for indemnification under Section 12.2(a) for a breach by the Seller of the representations and or warranties set forth in Article 4Section 4.21, which claim must be brought no later than the one year anniversary of the Closing Date, and no such claims may be brought by any Purchaser Indemnified Party under Section 12.9 or any other subparagraph of Section 12.2; and (bii) with respect to any unpaid Taxes Environmental Violation or matter of non-compliance with Environmental Law existing as of the Closing and continuing uninterrupted following the Closing that is (A) discovered by the Purchaser during the first year after the Closing Date, the sole and exclusive remedy of the Purchaser Indemnified Parties with respect to the period subsequent to the Closing (other than with respect to capital expenditures contemplated by clause (i) above) shall be recovery from the Sellers of any Seller under Treasury Regulation Section 1.1502fines and penalties associated with such Environmental Violation or matter of non-6 (or any similar provision of statecompliance with Environmental Law incurred during the first year following the Closing, local or foreign law), as a transferee or successor, by contracttogether with all reasonable attorney’s fees and consulting fees to address such non-compliance, or otherwise and (cB) any breach discovered by the Seller Purchaser after the first anniversary of the Closing Date, the sole and exclusive remedy of the Purchaser Indemnified Parties with respect to the period subsequent to the Closing shall be the costs of defending any covenants applicable claim or fines or penalties attributable to such Seller the first year of operation of the Business after the Closing.
. For the avoidance of doubt (c) Notwithstanding and other than as otherwise provided in Section 10.2(a) and 10.2(b12.2(g)), if a Securityholder shall not be deemed state of facts would allow a Purchaser Indemnified Party to have agreed to indemnify another Seller seek indemnification under Section 10.2(a12.2(a) as well as any other subparagraph of this Section 12.2 or 10.2(b) by reason of Section 12.9, the Purchaser Indemnified Party shall be entitled in its discretion to elect to seek indemnification under such other Seller’s position as an officer, director, shareholder, member subparagraph or employee of Calavo (including Surviving RFG and their Subsidiaries)Section 12.9.
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10.
Appears in 1 contract
Indemnification by the Sellers. (a) From and after the Closing Date, subject to the provisions of this Article 10date hereof, the Securityholders Sellers agree, jointly and severally, except as provided in Section 10.2(bto indemnify fully, hold harmless, protect and defend the Purchaser and its Affiliates (including, after the Closing, the Acquired Companies), shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their respective directors, officers, directors, shareholders, members, agents and employees, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers to the extent they serve in any such capacities) from and against against:
(i) any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending Losses incurred by any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, them arising out of, relating to or resulting from:
(i) Any based upon any inaccuracy in, or breach of, any of any representation the representations or warranty made by warranties of the Sellers contained in this Agreement (including any exhibit, schedule or other agreement in the Schedules or document delivered pursuant to this Agreement), subject to Section 10.2(b)Exhibits hereto;
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the Trust;
(b) From and after the Closing and subject to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and hold harmless Calavo (including Surviving RFG and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and against any and all Losses that such Parties may incur based upon, incurred by any of them arising out of, relating to or resulting from based upon any failure to perform, or other breach of, any of the covenants or agreements of either of the Sellers contained in or incorporated into this Agreement or in the Schedules hereto;
(iii) any and all Taxes imposed on any Acquired Company (a) for any breach by period ending prior to or on the Seller of the representations and warranties set forth in Article 4Closing, or (b) that is allocable to the pre-Closing portion of a Straddle Period, except to the extent reserved for as of the Closing and disclosed in the Acquired Companies’ Financials; and The right of the Purchaser and its Affiliates (and their respective directors, officers, agents and employees, successors and assigns) to be indemnified hereunder will not be limited or affected by any unpaid Taxes investigation conducted, or notice or knowledge obtained, by or on behalf of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision such Persons prior to the date of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (c) any breach by the Seller of any covenants applicable to such Seller after the Closing.
(b) No indemnification under this Section 6.2 shall be due unless the aggregate amount of Losses (aggregating all indemnifiable matters under this Section 6.2) due exceeds US$10,000, in which case indemnity shall become due for any Losses in excess of such amount.
(c) Notwithstanding Section 10.2(a) and 10.2(b)the foregoing, a Securityholder shall the Sellers will not be deemed to have agreed required to indemnify another Seller under Section 10.2(a) or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything in Section 10.5(a) to the contrary, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, to the extent their Affiliates receive any payments from Liberty Fresh Foods, LLC) agree to be jointly and severally liable for any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations Purchaser pursuant to this Article 10VI for any Losses (i) to the extent the Purchaser actually receives proceeds from insurance to pay such Losses, and (ii) to the extent the Purchaser actually receives payment from a Person on account of such Losses including but not limited to a third party also required to indemnify the Purchaser, in each case net of reasonable costs and expenses incurred in connection with the collection of such amounts. The Purchaser will refund any amount it actually receives (net of costs and expenses incurred in connection with collection of such amount) pursuant to the preceding sentence from insurance or a third party to the extent it actually receives such amount after payment by the Sellers.
Appears in 1 contract
Samples: Stock Purchase Agreement (Fresh Del Monte Produce Inc)
Indemnification by the Sellers. (a) From and after the Closing Date, subject to the provisions of this Article 10Closing, the Securityholders Sellers shall jointly and severally, except as provided in Section 10.2(b), shall severally indemnify, defend and hold harmless Calavo (including Surviving RFG the Medtronic Parties and their Subsidiaries) respective Affiliates and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns (excluding the Sellers Representatives against all Losses relating to the extent they serve in any such capacities) from and against any and all losses, damages, obligations, liabilities and other costs and expenses, including, without limitation, settlement costs, judgments, interest, penalties and reasonable attorneys’ fees, accountants’ fees and other costs and expenses for investigating or defending any Actions, claims and proceedings (all of the foregoing being collectively referred to herein as “Losses”) that such parties may incur based upon, arising out of, relating to or resulting from:
(a) (i) Any the breach of any representation or warranty made by of the Sellers under Section 4 of This Agreement or in the closing certificate referenced in Section 7.1(e)(i) (the “Sellers’ Closing Certificate”) (except as otherwise provided in the proviso of Section 6.17 (Notice of Developments) or (ii) the breach of any covenant or obligation of the Sellers in this This Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(ii) Any breach of, or failure to perform, any agreement of any RFG Family Entity or any Seller that is contained in this Agreement (including any exhibit, schedule or other agreement or document delivered pursuant to this Agreement), subject to Section 10.2(b);
(iii) With respect to the agreements to which Surviving RFG or its Subsidiaries is a party or is otherwise bound as of the Closing, any breaches or defaults (or events giving rise to such breaches or defaults) by any of the RFG Family Entities that occurred prior to the Closing;
(iv) Any litigation, arbitration, investigation or other claim or legal proceeding (including, without limitation, any claims and legal proceedings that are listed on a schedule to this Agreement), whether brought before or after the Closing, that is based upon or arises out of any actions or omissions made or taken by any Seller or any of the RFG Family Entities prior to the Closing;
(A) All Taxes of any of the RFG Family Entities for any taxable period ending on or prior to the Closing Date, (B) all Taxes of any member of an affiliated, combined or unitary group of which any of the RFG Family Entities is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign Law; and (C) any and all Taxes of any Person (other than the RFG Family Entities) imposed on the RFG Family Entities as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or prior to the Closing Date; and
(vi) All payments and other Losses made or incurred by any RFG Family Entity after the Closing Date that are attributable to any guarantees executed by such RFG Family Entity prior to the Closing Date of any obligations of any Seller or of any Affiliate of any Seller, including without limitations the guarantees executed by GHCA of the obligations of LIG Partners, LLC owed to Umpqua Bank and EDF Resource Capital, Inc.; and
(vii) Any litigation, arbitration, investigation or other claim or legal proceeding, whether brought before or after the Closing, that is based upon or arises out of the Roll Up Transaction or any actions or omissions made or taken by the TrustAncillary Agreements;
(b) From and after the Medtronic Parties’ use of the Xxxxxxxxx Logo in material conformity with This Agreement;
(c) any Liability of any Seller that may be imposed on any Medtronic Party under any doctrine of de facto merger or successor liability or similar legal doctrine, but excluding any Assumed Liability;
(d) any Third Party Claim arising under or relating to a right of first refusal to acquire any of the Purchased Assets other than any such Third Party Claim that is intentionally precipitated by any Medtronic Party; provided ¸ that a Third Party Claim asserted in response to an Action (other than a declaratory judgment Action pertaining to such right of first refusal) initiated by any Medtronic Party shall be deemed not to be “intentionally precipitated by” any Medtronic Party; or
(e) any Contractual Obligation of the Sellers to make any payments to any Third Party arising out of or relating to the payment to the Sellers of the Closing and subject Payment or the Alternate Closing Payment, as applicable, or any of the Post-Closing Payments; provided, however, that (A) the Sellers shall not have any obligation to the provisions of this Article 10, each Seller severally (and not jointly) shall indemnify, defend and or hold harmless Calavo (including Surviving RFG the Medtronic Parties or their Affiliates and their Subsidiaries) and each of their officers, directors, shareholders, members, employees, other Representatives, Affiliates, successors and permitted assigns from and Representatives against any and all Losses that such Parties may incur based upon, arising out of, relating to or resulting from (a) any breach by the Seller arising out of the breach of any representation or warranty of the Sellers set forth in Sections 4.4 (Consents), 4.5 (Litigation), 4.6 (Assumed Contracts), 4.7(a) (Title), 4.8(a) (Intellectual Property), 4.8(b) (Intellectual Property), 4.8(c) (Intellectual Property), 4.8(d)(ii) (Intellectual Property), 4.8(d)(iii) (Intellectual Property), 4.8(e) (Intellectual Property) and 4.9 (Solvency; Fair Consideration) of This Agreement or in the corresponding representations and warranties set forth in Article 4the Sellers’ Closing Certificate until the Medtronic Parties and their respective Affiliates and Representatives, collectively, have suffered Losses by reason of all such breaches of at least $25,000,000 (bthe “Basket”) any unpaid Taxes (after which point the Sellers will be obligated to indemnify the Medtronic Parties and their Affiliates and Representatives against all such Losses, including the amount of any Seller under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign lawthe Basket and not only to the extent such Losses exceed the Basket), as a transferee or successor, by contract, or otherwise and (cB) any there will be a $300,000,000 aggregate ceiling on the obligation of the Sellers to indemnify the Medtronic Parties and their respective Affiliates and Representatives against Losses relating to or arising out of breaches of the Sellers’ representations and warranties set forth in Section 4 of This Agreement or the Sellers’ Closing Certificate. No Claim for indemnification for breach by the any Seller of any covenants applicable to such Seller after the Closing.
(c) Notwithstanding Section 10.2(a) and 10.2(b), a Securityholder shall not be deemed to have agreed to indemnify another Seller under Section 10.2(a) representation or 10.2(b) by reason of such other Seller’s position as an officer, director, shareholder, member or employee of Calavo (including Surviving RFG and their Subsidiaries).
(d) Notwithstanding anything warranty set forth in Section 10.5(a4.8(d)(i) to the contrarymay be brought unless such Claim arises from, Xx. X. Catchot, Xx. X. Catchot and Xx. Xxxxxx (and their Affiliates, only to the extent such Claim arises from, (i) a Third Party Claim (including a defense to a Claim of infringement brought by any of the Medtronic Parties or their Affiliates receive Affiliates) or (ii) the failure by any payments from Liberty Fresh Foods, LLC) agree Medtronic Party to bring an Action for patent infringement against a Third Party due to an assessment by such Medtronic Party that such Action cannot be jointly and severally liable for brought because of a breach of a representation or warranty by any obligations of Liberty Fresh Foods, LLC, if and to the extent that Liberty Fresh Foods, LLC defaults on its obligations pursuant to this Article 10Sellers set forth in Section 4.8(d)(i).
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