Common use of Provisions Regarding Indemnity Clause in Contracts

Provisions Regarding Indemnity. (a) The amounts for which the Controlling Shareholders shall be liable under Sections 10.1 and 10.2 of this Agreement shall be net of any tax benefit realized or to be realized by the Indemnified Purchaser Party as a result of the facts and circumstances giving rise to the liability of the Controlling Shareholders, and shall also be net of any insurance proceeds received by the Indemnified Purchaser Party (retroactively, if necessary) in connection with the facts giving rise to the right of indemnification, and with respect to liability for any environmental costs. The Indemnified Purchaser Party shall be obligated in connection with any claim for indemnification under this Article 11 to use all commercially reasonable efforts to obtain any insurance proceeds available to such Indemnified Purchaser Party with regard to the applicable claim. (b) Notwithstanding the decision of any party to complete the Closing, each party shall be entitled to rely upon the representations and warranties set forth herein. Notwithstanding the foregoing, each party shall be entitled to assert any right of indemnification under Section 10.1 after the termination of this Agreement pursuant to Section 11.1 with respect to any dispute, claim, proceeding or action pending prior to such termination for which indemnification is available under Section 10.1 and such party shall be able to continue to have the right to be indemnified with respect thereto after such termination date. All claims for indemnification by an Indemnified Sellers Party under this Agreement shall be asserted and resolved under the procedures set forth above substituting in the appropriate place "Indemnified Sellers Party" for "Indemnified Purchaser Party" and variations thereof and "Purchaser" for "Controlling Shareholders."

Provisions Regarding Indemnity. (a) The amounts indemnified party (or parties) shall promptly notify the indemnifying party (or parties) of any third-party claim, demand, action or proceeding for which the Controlling Shareholders shall indemnification will or may be liable sought under Sections 10.1 and 10.2 9.2 or 9.3 (a “Third Party Claim”), but in no event later than ten (10) business days after receiving notice of this Agreement shall be net such Third Party Claim; provided, however, that the failure to so notify the indemnifying party will not relieve the indemnifying party from liability hereunder in respect of any tax benefit realized or such claim except to be realized by the Indemnified Purchaser Party extent the indemnifying party is prejudiced as a result of such failure, including where failure results in losses to the indemnifying party or the forfeiture of substantive rights or defenses that would otherwise be available in the defense of such claim. Such notice shall specify facts and circumstances reasonably known to the indemnified party (or parties) giving rise to such indemnity rights. The indemnifying party will have the liability right, at its expense, to assume the defense thereof using counsel reasonably acceptable to the indemnified party. If the indemnifying party elects not to assume the defense or fails to notify the indemnified party within ten (10) business days after delivery of the Controlling Shareholdersindemnified party’s notice of such Third Party Claim, and shall also be net of any insurance proceeds received by that it will assume the Indemnified Purchaser Party (retroactivelydefense, if necessary) in connection with then the facts giving rise indemnified party may employ counsel reasonably satisfactory to the right indemnifying party to represent or defend it against any such Third Party Claim and the indemnifying party will pay the reasonable fees and disbursements of indemnificationsuch counsel; provided, and with respect to liability for any environmental costs. The Indemnified Purchaser Party however, that the indemnifying party shall be obligated not, in connection with any claim legal proceeding or any separate but substantially similar legal proceedings arising out of the same general allegations, be liable for indemnification under this Article 11 to use the fees and expenses of more than one separate firm of attorneys at any time for all commercially reasonable efforts to obtain any insurance proceeds available to such Indemnified Purchaser Party with regard indemnified persons, except to the applicable claim. (b) Notwithstanding extent that local counsel, in addition to its regular counsel, is required in order to effectively defend against such legal proceeding. If the decision indemnifying party does assume the defense of any party to complete such Third Party Claim, the Closing, each indemnifying party shall be entitled to rely upon have no obligation in respect of the representations and warranties set forth herein. Notwithstanding indemnified party’s expenses; provided, that the foregoing, each indemnified party shall be entitled to assert any right of indemnification under Section 10.1 after the termination of this Agreement pursuant to Section 11.1 with respect to any dispute, claim, proceeding or action pending prior to such termination for which indemnification is available under Section 10.1 and such party shall be able to continue to have the right to be indemnified with respect thereto after such termination date. All claims for indemnification by an Indemnified Sellers Party under this Agreement shall be asserted and resolved under participate in, at its own expense, but not control, the procedures set forth above substituting in the appropriate place "Indemnified Sellers Party" for "Indemnified Purchaser Party" and variations thereof and "Purchaser" for "Controlling Shareholders."defense of any such

Provisions Regarding Indemnity. (a) The amounts for which Except as set forth in the Controlling Shareholders shall be liable next following sentence, the rights to reimbursement from the Escrow Funds under Sections 10.1 this Article 9 and 10.2 of this the Escrow Agreement shall be net of any tax benefit realized or to be realized by the Indemnified Purchaser Party as a result of the facts Chiquita's sole and circumstances giving rise to the liability of the Controlling Shareholders, and shall also be net of any insurance proceeds received by the Indemnified Purchaser Party (retroactively, if necessary) in connection with the facts giving rise to the right of indemnification, and exclusive remedy with respect to liability any Losses that Xxxxxxxx may suffer, sustain or become subject to pursuant to the terms of this Article 9, and Xxxxxxxx agrees that it shall not, and hereby waives all rights to, institute or maintain any suit, proceeding or action against the Shareholders or Shareholders Representatives or utilize or exercise any other legal or equitable remedy for the purpose of recovering damages or other relief with respect to any environmental costssuch Losses (including, without limitation, an action seeking to recover any portion of the purchase price previously paid to the Company's stockholders). The Indemnified Purchaser Party provisions of the preceding sentence shall be obligated not apply, or restrict Chiquita's rights and remedies against any Shareholder or Shareholders with respect to (a) any breach or inaccuracy of any Shareholder's respective representations, warranties, agreements (including the agreement to return such Shareholder's proportionate share of any amount due to Xxxxxxxx under Section 2.4(a)(ii)) or certifications set forth in connection with (i) a Shareholder Agreement, (ii) a Shareholders Certification, (iii) a letter of transmittal for Certificates, or (iv) a Principal Shareholders Agreement executed and 61 delivered by such Shareholder or (b) any claim for indemnification under intentional and fraudulent breach or inaccuracy of any of the representations and warranties made by the Companies in or pursuant to this Agreement. Notwithstanding anything to the contrary in this Article 11 9, Xxxxxxxx shall not have the right to use all commercially reasonable efforts to obtain any insurance proceeds available to such Indemnified Purchaser Party with regard recover Losses directly from the Shareholders pursuant to the applicable claimimmediately preceding sentence to the extent Xxxxxxxx has recovered such Losses from the Escrow Funds, and Xxxxxxxx shall not have the right to recover Losses from the Escrow funds to the extent Xxxxxxxx has recovered such Losses directly from the Shareholders pursuant to the immediately preceding sentence. (b) Notwithstanding If a claim or demand by a third party is made against an indemnified party, the decision indemnified party shall promptly notify the indemnifying party of such claim or demand, specifying the nature of such claim or demand and the amount or the estimated amount thereof to the extent then feasibly determinable (which estimate shall not be conclusive of the final amount of such claim and demand) (the "Claim Notice"). The indemnifying party shall have 15 business days from the personal delivery or mailing of the Claim Notice (the "Notice Period") to notify the indemnified party, (A) whether or not it disputes its liability to the indemnified party hereunder with respect to such claim or demand and (B) notwithstanding any such dispute, whether or not it desires, at its sole cost and expense, to defend the indemnified party against such claims or demand. If the indemnifying party fails to undertake the defense of any claim or demand, the indemnified party may undertake such matter at the expense of the indemnifying party. (c) If such claim, demand, action or proceeding is a third party claim, demand, action or proceeding, the indemnifying party will have the right at its expense to complete assume the Closing, each defense thereof using counsel reasonably acceptable to the indemnified party. The indemnified party shall be entitled have the right to rely upon the representations and warranties set forth herein. Notwithstanding the foregoingparticipate, each party shall be entitled to assert any right of indemnification under Section 10.1 after the termination of this Agreement pursuant to Section 11.1 at its own expense, with respect to any dispute, such third party claim, demand, action or proceeding. In connection with any such third party claim, demand, action or proceeding the parties shall cooperate with each other and provide each other with access to relevant books and records in their possession. No such third party claims, demand, action or action pending proceeding shall be settled without the prior written consent of the indemnified party, which consent shall not be unreasonably withheld or delayed. It shall be deemed not unreasonable if an indemnified party is unwilling to consent to a settlement in the event that (i) such termination settlement includes any nonmonetary relief against the indemnified party or (ii) such settlement involves liability to the indemnified party in excess of liability for which indemnification the indemnified party is available under Section 10.1 and such party shall be able to continue to have the right to be indemnified with respect thereto after such termination datehereunder. All claims for indemnification by an Indemnified Sellers Party under this Agreement shall be asserted and resolved under the procedures set forth above substituting Except in the appropriate place "Indemnified Sellers Party" for "Indemnified Purchaser Party" and variations thereof and "Purchaser" for "Controlling Shareholders."instances where a settlement restricts or negatively impacts

Provisions Regarding Indemnity. (a) None of the Indemnified Buyer Parties nor the Indemnified Seller Parties will have a right to indemnification under this Agreement unless and until the aggregate indemnifiable amount to which all such parties shall be entitled to exceeds $100,000.00 (the “Threshold”), at which time the indemnifying party or parties shall only be responsible for the amount in excess of the Threshold, provided however, the Threshold shall not be applicable to any claim for Losses incurred and the Indemnified Buyer Parties or the Indemnified Seller Parties, as the case may be, shall be entitled to indemnification beginning at dollar one, regardless of the amount of the claim for Losses, for either (i) fraud, (ii) any breach of any of the representations and warranties set forth in Section 3.1, Section 3.2, Section 3.3, Section 3.7, Section 3.8 (except for the last sentence of Section 3.8(c)), Section 4.1, Section 4.2 or Section 4.3, or (iii) any claim for indemnification brought pursuant to Section 10.1(f) (or Section 10.1(g) to the extent arising out of or related to an indemnification claim brought pursuant to Section 10.1(f)). (b) The amounts amount of any Losses for which the Controlling Shareholders shall be liable under Sections 10.1 and 10.2 of this Agreement indemnification is provided hereunder shall be net of (i) amounts recovered either any tax benefit realized Indemnified Buyer Party, or any Indemnified Seller Party, as the case may be (such party being an “Indemnified Party”), pursuant to any indemnification by, or indemnification agreement with, any third Person, (ii) insurance proceeds or other cash receipts or sources of reimbursement received as an offset against such Losses, and (iii) an amount equal to the present value of the Tax benefit, if any, attributable to such Losses. If the amount to be realized netted hereunder from any indemnification payment required under this Article X is determined after payment by LSI or Buyer, or any or all of the Sellers, as the case may be, of any amount otherwise required to be paid as indemnification pursuant hereto, the Indemnified Purchaser Party as a result shall repay, promptly after such determination, any amount that LSI or Buyer, or any or all of the facts and circumstances giving rise Sellers, as the case may be, would not have had to pay pursuant hereto had such determination been made at the liability time of such payment. Each party hereto shall use commercially reasonable efforts to mitigate any consequential damages for which any claim may be made against any of the Controlling Shareholders, other parties hereto for indemnification under this Agreement. (c) This Article X shall provide the sole and shall also be net exclusive remedy for any and all Losses sustained or incurred by any of any insurance proceeds received by the Indemnified Purchaser Party (retroactivelySeller Parties or Indemnified Buyer Parties, if necessary) as the case may be, in connection with the facts giving rise to transactions contemplated by this Agreement and the right Real Estate Purchase Agreement, absent fraud or willful misconduct on the part of indemnificationany Company, and with respect to liability for any environmental costs. The Indemnified Purchaser Party shall be obligated in connection with any claim for indemnification under this Article 11 to use all commercially reasonable efforts to obtain any insurance proceeds available to such Indemnified Purchaser Party with regard to the applicable claimShareholder, LSI or Buyer. (bd) Notwithstanding the decision of any party to complete the Closing, each party shall be entitled to rely upon the representations and warranties set forth herein. Notwithstanding the foregoing, each Each party shall be entitled to assert any right of indemnification under Section 10.1 this Article X after the termination of this Agreement pursuant to Section 11.1 12.1 with respect to any dispute, claim, proceeding or action pending prior to such termination for which indemnification is available under Section 10.1 this Article X and such party shall be able to continue to have the right to be indemnified with respect thereto after such termination date. All claims for indemnification The right to indemnification, reimbursement or any other remedy based upon such representations, warranties, covenants and obligations shall not be affected by an Indemnified Sellers Party under any investigation (including any environmental investigation or assessment) conducted with respect to, or any Knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement shall be asserted and resolved under or the procedures set forth above substituting in Closing Date, with respect to, the appropriate place "Indemnified Sellers Party" for "Indemnified Purchaser Party" and variations thereof and "Purchaser" for "Controlling Shareholdersaccuracy or inaccuracy of or compliance with any such representation, warranty, covenant or obligation."