Intercompany Arrangements. (a) Except as set forth on Schedule 6.2 or except pursuant to the Transition Services Agreement, effective as of the Closing, all services (including cash management and treasury, accounting, tax, insurance, human resources and employee benefits, environmental, banking, legal, data network and other services) provided to the Company or its Subsidiary by any Hub Group Company, including any Intercompany Agreements or other agreements, arrangements or understandings (written or oral) with respect thereto, will immediately terminate without any further action on the part of the parties thereto and none of the Company or its Subsidiary, on the one hand, or any Hub Group Company or any of its post-Closing Affiliates, on the other hand, shall have any further liability or obligation with respect to any such terminated agreement or understanding. Without limiting the generality of the foregoing, any intercompany payables or receivables between the Company or its Subsidiary, on the one hand, and Seller or any of its Subsidiaries (other than the Company or its Subsidiary), on the other hand, existing as of immediately prior to the Closing shall be terminated as of immediately prior to the Closing without any action required by any Person and without any further liability or obligation with respect to any such terminated payables or receivables. Without limiting the generality of the foregoing, except as provided in Section 6.2(b), as of the Closing, the coverage under all insurance policies maintained by Seller, any other Hub Group Company and/or any of their respective post-Closing Affiliates related to the Company and/or its Subsidiary (other than, for the avoidance of doubt, insurance policies maintained by the Company or its Subsidiary in which any of the foregoing Persons are the exclusive named insureds) shall continue in force only for the benefit of Seller and its post-Closing Affiliates and not for the benefit of Purchaser or its Affiliates (including, after the Closing, any of the Company and its Subsidiary). Purchaser agrees to arrange for its own account insurance policies with respect to the Company and its Subsidiary covering all periods beginning from and after the Closing and agrees not to seek (and to cause the Company and its Subsidiary not to seek from and after the Closing), through any means, to benefit from any of the insurance policies maintained by Seller, any other Hub Group Company and/or any of their respective post-Closing Affiliates which may provide coverage for claims relating in any way to the Company and/or its Subsidiary, except as provided in Section 6.2(b). (b) To the extent that any third-party claims against, or first-party claims by, the Company or its Subsidiary arising out of a pre-Closing occurrence may be covered by Seller’s or its Subsidiaries’ occurrence-based insurance policies (including any stop loss, excess liability, umbrella, workers’ compensation, automobile and product liability coverage that is an occurrence-based insurance policy) (other than self-insurance) (such claims, the “Potential Claims”, and such policies, the “Seller Occurrence Policies”), Seller shall use commercially reasonable efforts to facilitate coverage under the relevant Seller Occurrence Policy for such Potential Claims (subject to reimbursement by Purchaser or the Company for any costs and expenses incurred by Seller or any of its Affiliates in using such efforts); such coverage determination to be governed by and construed in accordance with the terms and conditions of the relevant Seller Occurrence Policy. The Company or its Subsidiary (as the case may be) shall provide prompt written notice to Seller after receiving notice of any Potential Claim. Purchaser, the Company and its Subsidiary shall be solely responsible for the amount of any deductible or retention amount applicable to any Potential Claim under any Seller Occurrence Policy. Seller agrees not to, and to cause its Subsidiaries not to, voluntarily relinquish, terminate, buy out or reduce the benefits under any such Seller Occurrence Policies with respect to any Potential Claim. With respect to any litigation matter pending as of the date hereof, Seller shall use commercially reasonable efforts to seek the maximum recovery or allow Purchaser to seek recovery under the Seller Occurrence Policies, and reasonably cooperate with Purchaser if it seeks recovery, with respect to such litigation matters and shall remit any proceeds actually recovered therefrom (net of the cost and expense incurred by Seller or any of its Subsidiaries with respect to any such recovery) to Purchaser or its designee. From and after the Closing, Seller shall not, and shall cause its Subsidiaries not to, make any adjustments to any premium or loss allocations in respect of the Business without the prior consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). (c) For a period of five (5) years following the Closing Date, Purchaser and Seller shall, and shall cause their respective Affiliates to, reasonably cooperate with each other in the defense or settlement of all lawsuits involving the Business by providing the other party and such party’s legal counsel and other designated Persons reasonable access to their respective books and records and other information related to the Business as such other party may reasonably request, to the extent the same are maintained or under control of the requested party. The requesting party shall reimburse the other party for all reasonable out-of-pocket expenses (including reasonable attorneys’ fees) paid to third parties in performing its obligations under this Section 6.2(c). (d) Each Hub Group Company and/or any of their respective post-Closing Affiliates are intended third party beneficiaries of this Section 6.2. Without limiting the right of any such Persons under this Agreement, Seller may enforce the rights of each of them under this Section 6.2.
Appears in 2 contracts
Samples: Purchase Agreement, Purchase Agreement (Hub Group, Inc.)
Intercompany Arrangements. (a) Except as set forth on Schedule 6.2 or except pursuant to the Transition Services Agreement, effective as of the Closing, all services (including cash management and treasury, accounting, tax, insurance, human resources and employee benefits, environmental, banking, legal, data network and other services) provided to the Company or its Subsidiary by any Hub Group Company, including any Intercompany Agreements or other agreements, arrangements or understandings (written or oral) with respect thereto, will immediately terminate without any further action on the part of the parties thereto and none of the Company or its Subsidiary, on the one hand, or any Hub Group Company or any of its post-Closing Affiliates, on the other hand, shall have any further liability or obligation with respect to any such terminated agreement or understanding. Without limiting the generality of the foregoing, any intercompany payables or receivables between the Company or its Subsidiary, on the one hand, and Seller or any of its Subsidiaries (other than the Company or its Subsidiary), on the other hand, existing as of immediately prior to the Closing shall be terminated as of immediately prior to the Closing without any action required by any Person and without any further liability or obligation with respect to any such terminated payables or receivables. Without limiting the generality of the foregoing, except as provided in Section 6.2(b), as As of the Closing, the coverage under all insurance policies maintained by Seller, any other Hub Group Company and/or Seller or any of their respective post-Closing its Affiliates related to the Company and/or its Subsidiary (other than, for the avoidance of doubt, insurance policies maintained by the Company or its Subsidiary in which any of the foregoing Persons are the exclusive named insureds) its Subsidiaries shall cease and continue in force only for the benefit of Seller and its post-Closing Affiliates (other than the Company and not its Subsidiaries); provided, that coverage under such insurance policies shall continue in force for the benefit of Purchaser or its Affiliates (including, after the Closing, any of the Company and its Subsidiary)Subsidiaries with respect to occurrences prior to the Closing Date in accordance with the terms of such insurance policies. Purchaser Buyer agrees to arrange for its own account insurance policies with respect to the Company and its Subsidiary Subsidiaries covering all periods beginning from and after the Closing and agrees not to seek (and to cause the Company and its Subsidiary Subsidiaries not to seek from and after the Closing), through any means, to benefit from any of the insurance policies maintained by Seller, any other Hub Group Company and/or Seller or any of their respective post-Closing its Affiliates which may provide coverage for claims relating in any way to the Company and/or any of its SubsidiarySubsidiaries, except other than such claims with respect to occurrences prior to the Closing Date which shall continue following the Closing to be covered by Seller and its Affiliates pursuant to the terms of the applicable insurance policies. Buyer further acknowledges and agrees that Buyer, the Company or any of its Subsidiaries shall not be entitled to any reimbursement or repayment of premiums paid by the Company or any of its Subsidiaries under any insurance policies for which coverage is being terminated as provided in Section 6.2(b)of Closing.
(b) To the extent that any third-party claims againstSeller shall settle, by dividends, whether actual or deemed, by capital contributions, whether actual or deemed, or first-party claims byotherwise, as the Company or its Subsidiary arising out of case may be, in a pre-Closing occurrence may be covered manner determined by Seller’s or , all inter-company receivables and/or payables outstanding between Seller and its Subsidiaries’ occurrence-based insurance policies (including any stop loss, excess liability, umbrella, workers’ compensation, automobile and product liability coverage that is an occurrence-based insurance policy) Affiliates (other than self-insurancethe Company and its Subsidiaries) on the one hand, and the Company and its Subsidiaries on the other hand, prior to the Closing Date.
(such claimsc) Seller shall cause all agreements between Seller and its Affiliates (other than the Company and its Subsidiaries) on the one hand, and the Company and its Subsidiaries on the other hand, other than those agreements listed on Section 6.14(c) of the Company Disclosure Schedule, to be terminated on or prior to the Closing Date and all resulting payments to be settled on or before the Closing Date.
(d) Seller has informed Buyer that Seller or one of its Subsidiaries has caused to be issued, for the benefit of the Company and/or its Subsidiaries, the “Potential Claims”, and such policies, letters of credit listed on Section 6.14(d) of the Company Disclosure Schedule (the “Seller Occurrence PoliciesExisting Letters of Credit”). Effective as of the Closing, provided that Seller has given to Buyer sufficient information to allow Buyer to do so, Buyer shall use commercially reasonable efforts to facilitate coverage under substitute replacement letters of credit (“Replacement Letters of Credit”) for the relevant Seller Occurrence Policy Existing Letters of Credit and arrange for such Potential Claims (subject return and cancellation of the Existing Letters of Credit without further liability to reimbursement by Purchaser or Seller, the Company for any costs and expenses incurred by Seller or any of its Affiliates in using Subsidiaries; provided, however, that if Seller has not provided such efforts); such coverage determination sufficient information to be governed by and construed in accordance with Buyer prior to the terms and conditions of the relevant Seller Occurrence Policy. The Company or its Subsidiary (as the case may be) shall provide prompt written notice to Seller after receiving notice of any Potential Claim. PurchaserClosing, the Company and its Subsidiary shall be solely responsible for the amount of any deductible or retention amount applicable to any Potential Claim under any Seller Occurrence Policy. Seller agrees not to, and to cause its Subsidiaries not to, voluntarily relinquish, terminate, buy out or reduce the benefits under any such Seller Occurrence Policies with respect to any Potential Claim. With respect to any litigation matter pending as of the date hereof, Seller shall Buyer will use commercially reasonable efforts to seek substitute the maximum recovery or allow Purchaser Replacement Letters of Credit following the Closing as soon as practicable after Seller provides such sufficient information to seek recovery under the Seller Occurrence Policies, and reasonably cooperate with Purchaser if it seeks recovery, with respect Buyer.
(e) Prior to such litigation matters and shall remit any proceeds actually recovered therefrom (net of the cost and expense incurred by Seller or any of its Subsidiaries with respect to any such recovery) to Purchaser or its designee. From and after the Closing, Seller shall nottransfer to the Company or its Subsidiaries, and shall cause its Subsidiaries not to, make any adjustments to any premium or loss allocations in respect the Company Intellectual Property set forth on Section 6.14(e) of the Business without the prior consent of Purchaser (not to be unreasonably withheld, conditioned or delayed)Company Disclosure Schedule.
(c) For a period of five (5) years following the Closing Date, Purchaser and Seller shall, and shall cause their respective Affiliates to, reasonably cooperate with each other in the defense or settlement of all lawsuits involving the Business by providing the other party and such party’s legal counsel and other designated Persons reasonable access to their respective books and records and other information related to the Business as such other party may reasonably request, to the extent the same are maintained or under control of the requested party. The requesting party shall reimburse the other party for all reasonable out-of-pocket expenses (including reasonable attorneys’ fees) paid to third parties in performing its obligations under this Section 6.2(c).
(d) Each Hub Group Company and/or any of their respective post-Closing Affiliates are intended third party beneficiaries of this Section 6.2. Without limiting the right of any such Persons under this Agreement, Seller may enforce the rights of each of them under this Section 6.2.
Appears in 1 contract
Intercompany Arrangements. (a) Except as set forth on Schedule 6.2 or except pursuant for any Contracts involving amounts that are not material to the Transition Services AgreementBusiness and other than the Transaction Documents and the Contracts contemplated thereby, effective as the Organizational Documents of the Closing, all services (including cash management Purchased Companies and treasury, accounting, tax, insurance, human resources and employee benefits, environmental, banking, legal, data network and other services) provided any Contracts that will be terminated prior to the Company or its Subsidiary by any Hub Group CompanyClosing in compliance with Section 5.2, including any Intercompany Agreements or other agreements, arrangements or understandings (written or oralSection 3.16(a) with respect thereto, will immediately terminate without any further action on the part of the parties thereto and none of the Seller Disclosure Schedules lists all Contracts (i) between any Purchased Company or its Subsidiary, on the one hand, or any Hub Group Company and (A) Seller or any of its post-Closing AffiliatesAffiliates (other than any Purchased Company), (B) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of Seller or any of its Affiliates (other than any Purchased Company), (C) any Person 5% or more of whose outstanding voting securities are directly or indirectly owned, controlled or held with power to vote by Seller or any of its Affiliates (other than any Purchased Company) or (D) any director or officer of Seller or any of its Affiliates (other than any Purchased Company) or any “associates” or members of the “immediate family” (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Securities Exchange Act of 1934) of any such director or officer, on the other hand, shall have any further liability or obligation with respect to any hand (each such terminated agreement or understanding. Without limiting the generality of Contract described in the foregoing, a “Related Party Agreement”).
(b) Section 3.16(b) of the Seller Disclosure Schedules contains a true and complete list in all material respects of all intercompany balances as of December 29, 2018 between Seller and its Affiliates (other than any intercompany payables or receivables between the Company or its SubsidiaryPurchased Company), on the one hand, and Seller or any of its Subsidiaries (other than the Company or its Subsidiary)a Purchased Company, on the other hand, existing as of immediately prior to other than any such intercompany balances that will be included on the Closing shall be terminated as Statement. Since December 29, 2018, there has not been any material accrual of immediately prior to the Closing without any action required Liability by any Person and without any further liability Purchased Company to Seller or obligation with respect to any such terminated payables or receivables. Without limiting the generality of the foregoing, except as provided in Section 6.2(b), as of the Closing, the coverage under all insurance policies maintained by Seller, any other Hub Group Company and/or any of their respective post-Closing Affiliates related to the Company and/or its Subsidiary (other than, for the avoidance of doubt, insurance policies maintained by the Company or its Subsidiary in which any of the foregoing Persons are the exclusive named insureds) shall continue in force only for the benefit of Seller and its post-Closing Affiliates and not for the benefit of Purchaser or its Affiliates (including, after the Closing, other than any of the Company and its Subsidiary). Purchaser agrees to arrange for its own account insurance policies with respect to the Company and its Subsidiary covering all periods beginning from and after the Closing and agrees not to seek (and to cause the Company and its Subsidiary not to seek from and after the ClosingPurchased Company), through or any means, to benefit from any material accrual of the insurance policies maintained by Seller, any other Hub Group Company and/or any of their respective post-Closing Affiliates which may provide coverage for claims relating in any way to the Company and/or its Subsidiary, except as provided in Section 6.2(b).
(b) To the extent that any third-party claims against, or first-party claims by, the Company or its Subsidiary arising out of a pre-Closing occurrence may be covered by Seller’s or its Subsidiaries’ occurrence-based insurance policies (including any stop loss, excess liability, umbrella, workers’ compensation, automobile and product liability coverage that is an occurrence-based insurance policy) (other than self-insurance) (such claims, the “Potential Claims”, and such policies, the “Seller Occurrence Policies”), Seller shall use commercially reasonable efforts to facilitate coverage under the relevant Seller Occurrence Policy for such Potential Claims (subject to reimbursement by Purchaser or the Company for any costs and expenses incurred Liability by Seller or any of its Affiliates in using such efforts); such coverage determination to be governed by and construed in accordance with the terms and conditions of the relevant Seller Occurrence Policy. The Company or its Subsidiary (as the case may beother than any Purchased Company) shall provide prompt written notice to Seller after receiving notice of any Potential Claim. Purchaser, the Company and its Subsidiary shall be solely responsible for the amount of any deductible or retention amount applicable to any Potential Claim under any Seller Occurrence Policy. Seller agrees not toPurchased Company, and to cause its Subsidiaries not to, voluntarily relinquish, terminate, buy out or reduce except as will be included on the benefits under any such Seller Occurrence Policies with respect to any Potential Claim. With respect to any litigation matter pending as of the date hereof, Seller shall use commercially reasonable efforts to seek the maximum recovery or allow Purchaser to seek recovery under the Seller Occurrence Policies, and reasonably cooperate with Purchaser if it seeks recoveryClosing Statement or, with respect to such litigation matters and shall remit any proceeds actually recovered therefrom (net of the cost and expense incurred by Seller or any of its Subsidiaries with respect to any such recovery) to Purchaser or its designee. From and after the Closing, Seller shall not, and shall cause its Subsidiaries not to, make any adjustments to any premium or loss allocations in respect of the Business without the period prior consent of Purchaser (not to be unreasonably withheld, conditioned or delayed).
(c) For a period of five (5) years following the Closing Date, Purchaser and Seller shall, and shall cause their respective Affiliates to, reasonably cooperate with each other in the defense or settlement of all lawsuits involving the Business by providing the other party and such party’s legal counsel and other designated Persons reasonable access to their respective books and records and other information related to the Business as such other party may reasonably request, to the extent the same are maintained or under control date of the requested party. The requesting party shall reimburse the other party for all reasonable out-of-pocket expenses (including reasonable attorneys’ fees) paid to third parties in performing its obligations under this Section 6.2(c).
(d) Each Hub Group Company and/or any of their respective post-Closing Affiliates are intended third party beneficiaries of this Section 6.2. Without limiting the right of any such Persons under this Agreement, Seller may enforce in the rights ordinary course of each of them under this Section 6.2business consistent with past practice.
Appears in 1 contract
Intercompany Arrangements. (a) Except as set forth on Schedule 6.2 or 6.7 (and except pursuant to for the Transition Services Agreement), effective as of the Closing, (i) all services (including cash management and treasury, accounting, tax, insurance, human resources and employee benefits, environmental, banking, legal, data network and other services) provided to the Company or any of its Subsidiary Subsidiaries by any Hub Former Xxxxx Group Company, including any Intercompany Agreements or other agreements, arrangements agreements or understandings (written or oral) with respect thereto, will and (ii) any other agreements or understandings between the Company or any of its Subsidiaries, on the one hand, and any Former Xxxxx Group Company, on the other hand, as in effect as of the Closing and under which there is any future material payment obligation that survives the Closing, will, in each case of the foregoing clauses (i) and (ii), immediately terminate effective as of the Closing without any further action on the part of the parties thereto and and, except for any liabilities or obligations with respect thereto reflected in the finalized calculation of Net Working Capital pursuant to this Agreement, none of the Company or any of its SubsidiarySubsidiaries, on the one hand, or any Hub Former Xxxxx Group Company or any of its post-Closing Affiliates, on the other hand, shall have any further liability or obligation with respect to any such terminated agreement or understanding. Without limiting the generality of the foregoing, any intercompany payables or receivables between the Company or its Subsidiary, on the one hand, and Seller or any of its Subsidiaries (other than the Company or its Subsidiary), on the other hand, existing as of immediately prior to the Closing shall be terminated as of immediately prior to the Closing without any action required by any Person and without any further liability or obligation with respect to any such terminated payables or receivables. Without limiting the generality of the foregoing, except as provided in Section 6.2(b), as of the Closing, the coverage under all insurance policies maintained by Seller, any other Hub Former Xxxxx Group Company and/or any of their respective post-Closing Affiliates related to the Company and/or any of its Subsidiary Subsidiaries (other than, for the avoidance of doubt, insurance policies maintained by the Company or an of its Subsidiary Subsidiaries in which any of the foregoing Persons are the exclusive named insureds) shall continue in force only for the benefit of Seller and its post-Closing Affiliates and not for the benefit of Purchaser or its Affiliates (including, after the Closing, any of the Company and its SubsidiarySubsidiaries). Purchaser agrees to arrange for its own account insurance policies with respect to the Company and its Subsidiary Subsidiaries covering all periods beginning from and after the Closing and agrees not to seek (and to cause the Company and its Subsidiary Subsidiaries not to seek from and after the Closing), through any means, to benefit from any of the insurance policies maintained by Seller, any other Hub Former Xxxxx Group Company and/or any of their respective post-Closing Affiliates which may provide coverage for claims relating in any way to the Company and/or its Subsidiary, except as provided in Section 6.2(b).
(b) To the extent that any third-party claims against, or first-party claims by, the Company or its Subsidiary arising out of a pre-Closing occurrence may be covered by Seller’s or its Subsidiaries’ occurrence-based insurance policies (including any stop loss, excess liability, umbrella, workers’ compensation, automobile and product liability coverage that is an occurrence-based insurance policy) (other than self-insurance) (such claims, the “Potential Claims”, and such policies, the “Seller Occurrence Policies”), Seller shall use commercially reasonable efforts to facilitate coverage under the relevant Seller Occurrence Policy for such Potential Claims (subject to reimbursement by Purchaser or the Company for any costs and expenses incurred by Seller or any of its Affiliates in using such efforts); such coverage determination to be governed by and construed in accordance with the terms and conditions of the relevant Seller Occurrence PolicySubsidiaries. The Company or its Subsidiary (as the case may be) shall provide prompt written notice to Seller after receiving notice of any Potential Claim. Purchaser, the Company and its Subsidiary shall be solely responsible for the amount of any deductible or retention amount applicable to any Potential Claim under any Seller Occurrence Policy. Seller agrees not to, and to cause its Subsidiaries not to, voluntarily relinquish, terminate, buy out or reduce the benefits under any such Seller Occurrence Policies with respect to any Potential Claim. With respect to any litigation matter pending as of the date hereof, Seller shall use commercially reasonable efforts to seek the maximum recovery or allow Purchaser to seek recovery under the Seller Occurrence Policies, and reasonably cooperate with Purchaser if it seeks recovery, with respect to such litigation matters and shall remit any proceeds actually recovered therefrom (net of the cost and expense incurred by Seller or any of its Subsidiaries with respect to any such recovery) to Purchaser or its designee. From and after the Closing, Seller shall not, and shall cause its Subsidiaries not to, make any adjustments to any premium or loss allocations in respect of the Business without the prior consent of Purchaser (not to be unreasonably withheld, conditioned or delayed).
(c) For a period of five (5) years following the Closing Date, Purchaser and Seller shall, and shall cause their respective Affiliates to, reasonably cooperate with each other in the defense or settlement of all lawsuits involving the Business by providing the other party and such party’s legal counsel and other designated Persons reasonable access to their respective books and records and other information related to the Business as such other party may reasonably request, to the extent the same are maintained or under control of the requested party. The requesting party shall reimburse the other party for all reasonable out-of-pocket expenses (including reasonable attorneys’ fees) paid to third parties in performing its obligations under this Section 6.2(c).
(d) Each Hub Former Xxxxx Group Company and/or any of their respective post-Closing Affiliates are intended third party beneficiaries of this Section 6.26.7. Without limiting the right of any such Persons under this Agreement, Seller may enforce the rights of each of them under this Section 6.26.7.
Appears in 1 contract
Samples: Purchase Agreement (Coach Inc)
Intercompany Arrangements. (a) Except as set forth on Schedule 6.2 provided in Section 4.9(a)(i) of the Seller Disclosure Schedule, all intercompany accounts receivable or except accounts payable (other than trade receivables or payables incurred in the ordinary course of business arising pursuant to the Transition Services Agreement, effective as Contracts set out in Section 4.9(a)(ii) of the Closing, all services (including cash management and treasury, accounting, tax, insurance, human resources and employee benefits, environmental, banking, legal, data network and other servicesSeller Disclosure Schedule) provided to the Company or its Subsidiary by any Hub Group Company, including any Intercompany Agreements or other agreements, arrangements or understandings (written or oral) with respect thereto, will immediately terminate without any further action on the part of the parties thereto and none of the Company or its Subsidiary, on the one hand, or any Hub Group Company or any of its post-Closing Affiliates, on the other hand, shall have any further liability or obligation with respect to any such terminated agreement or understanding. Without limiting the generality of the foregoing, any intercompany payables or receivables between the Company or its Subsidiaryand/or the Company Subsidiaries, on the one hand, and Seller or any of and its Subsidiaries Affiliates (other than the Company or its Subsidiaryand the Company Subsidiaries), on the other hand, existing as of immediately shall be eliminated prior to the Closing shall be terminated as by repayment, book entry, capital contribution, distribution, creation of immediately prior to an intercompany loan between the Closing without Company and/or the Company Subsidiaries, forgiveness, or any action required by any Person and without any further liability or obligation with respect to any such terminated payables or receivables. Without limiting the generality combination of the foregoing, except as provided in Section 6.2(b)at Seller’s sole and absolute discretion, as of without any consideration to any party and without the Closing, the coverage under all insurance policies maintained by Seller, need for any other Hub Group Company and/or any of their respective post-Closing Affiliates related further documentation. Notwithstanding anything herein to the Company and/or its Subsidiary (other thancontrary, for in no event shall the avoidance elimination of doubt, insurance policies maintained by the Company an account receivable or its Subsidiary account payable in which accordance with to this Section 4.9(a) be deemed a breach or violation of any provision of the foregoing Persons are the exclusive named insureds) shall continue in force only for the benefit of Seller and its post-Closing Affiliates and not for the benefit of Purchaser or its Affiliates (including, after the Closing, any of the Company and its Subsidiary). Purchaser agrees to arrange for its own account insurance policies with respect to the Company and its Subsidiary covering all periods beginning from and after the Closing and agrees not to seek (and to cause the Company and its Subsidiary not to seek from and after the Closing), through any means, to benefit from any of the insurance policies maintained by Seller, any other Hub Group Company and/or any of their respective post-Closing Affiliates which may provide coverage for claims relating in any way to the Company and/or its Subsidiary, except as provided in Section 6.2(b)this Agreement.
(b) To the extent that any third-party claims against, or first-party claims by, the Company or its Subsidiary arising out of a pre-Closing occurrence may be covered by Seller’s or its Subsidiaries’ occurrence-based insurance policies (including any stop loss, excess liability, umbrella, workers’ compensation, automobile and product liability coverage that is an occurrence-based insurance policy) (other than self-insurance) (such claims, the “Potential Claims”, and such policies, the “Seller Occurrence Policies”), Seller shall use commercially reasonable efforts to facilitate coverage under the relevant Seller Occurrence Policy for such Potential Claims (subject to reimbursement by Purchaser or the Company for any costs and expenses incurred by Seller or any of its Affiliates in using such efforts); such coverage determination to be governed by and construed in accordance with the terms and conditions of the relevant Seller Occurrence Policy. The Company or its Subsidiary (as the case may be) shall provide prompt written notice to Seller after receiving notice of any Potential Claim. Purchaser, the Company and its Subsidiary shall be solely responsible for the amount of any deductible or retention amount applicable to any Potential Claim under any Seller Occurrence Policy. Seller agrees not to, and to cause its Subsidiaries not to, voluntarily relinquish, terminate, buy out or reduce the benefits under any such Seller Occurrence Policies with respect to any Potential Claim. With respect to any litigation matter pending as of the date hereof, Seller shall use commercially reasonable efforts to seek the maximum recovery or allow Purchaser to seek recovery under the Seller Occurrence Policies, and reasonably cooperate with Purchaser if it seeks recovery, with respect to such litigation matters and shall remit any proceeds actually recovered therefrom (net of the cost and expense incurred by Seller or any of its Subsidiaries with respect to any such recovery) to Purchaser or its designee. From and after effect from the Closing, Seller shall not(i) hereby waives on its own behalf and on behalf of its Affiliates, to the fullest extent permitted under Law, any and all claims (other than claims arising from fraud, willful misconduct or willful concealment by Purchaser or its Affiliates), Liabilities and amounts owed by each member of the Group to Seller and its Affiliates in respect of any Contracts, covenants, agreements, commitments, actions or omissions made or taken prior to the Closing; and (ii) undertakes not to make, and shall cause procure that its Subsidiaries Affiliates shall not tomake, make any adjustments to any premium or loss allocations claims in respect of any such amounts or Liabilities; provided that this Section shall not apply to any claims, amounts or demands owed or made, pursuant to any Ancillary Agreement or the Business without the prior consent of Purchaser (not to be unreasonably withheldDistribution Agreement, conditioned or delayed).
(c) For a period of five (5) years following the Closing Date, Purchaser and Seller shall, and shall cause their respective Affiliates to, reasonably cooperate with each other trade receivables or payables incurred in the defense or settlement ordinary course of all lawsuits involving the Business by providing the other party and such party’s legal counsel and other designated Persons reasonable access business arising pursuant to their respective books and records and other information related to the Business as such other party may reasonably request, to the extent the same are maintained or under control Contracts set out in Section 4.9(a)(ii) of the requested party. The requesting party shall reimburse the other party for all reasonable out-of-pocket expenses (including reasonable attorneys’ fees) paid to third parties in performing its obligations under this Section 6.2(c)Seller Disclosure Schedule.
(d) Each Hub Group Company and/or any of their respective post-Closing Affiliates are intended third party beneficiaries of this Section 6.2. Without limiting the right of any such Persons under this Agreement, Seller may enforce the rights of each of them under this Section 6.2.
Appears in 1 contract
