Fill and Sign the 13 Procedural Issues Form

§ 10.13 Procedural Issu es Page 291 Non-Third Party C laims. Alternative 1—Covenan t (a) Indemnitee to Give Notice of Claim. The indemnitee shall notify the indemnitor in writing, and with reasonable promptness, of any claim that does not involve a Third Party Claim (a “Claim”). Alternative 2—Con dition Precedent (a) Indemnitee to Give Notice of Claim. It is a condition precedent to the indemnitor’s obligation to indemnify the indemnitee that the indemnitee notify the indemnitor in writing, with reasonable promptness, of any claim that does not involve a Third Party Claim (a “Claim”). Alternative 3—Covenan t and Condition Precedent (a) Indemnitee to Give Notice of Claim. The indemnitee shall notify the indemnitor in writing, with reasonable promptness, of any claim that does not involve a Third Party Claim (a “Claim”). (b) Ramification of Indemni tee’s Failure to Deliver Timely Notice. It is a condition precedent to the indemnitor’s obligation to indemnify the indemnitee for a Claim that the indemnitee perform its obligations under subsections (a) and (c). However, failure to satisfy the condition precedent relieves the indemnitor of its obligation to indemnify for a Claim only to the extent that the indemnitor has been actually prejudiced by the indemnitee’s failure to give notice as required. Page 295 . . . and, if not resolved through negotiations, the parties shall resolve the dispute by litigation in an appropriate court of competent jurisdiction. OR . . . and, if not resolved through negotiations, the parties shall arbitrate the dispute pursuant to the provisions of Section _______. *** Third Party Clai ms. Alternative 1(a) Notice of Third Party Claim. If any third party makes any claim or brings any action, suit or proceeding against the indemnitee (a “Third Party Claim”), it is a condition precedent to the indemnitor’s obligation to indemnify against that Third Party Claim that the indemnitee notify the indemnitor (i) in writing, and in reasonable detail, of the Third Party Claim; and (ii) reasonably promptly, but in no event later than 20 business days after the indemnitee’s receipt of written notice of the Third Party Claim. If the indemnitee fails to give proper notice, the indemnitor is still obligated to indemnify the indemnitee, except that the indemnitor is not liable for any Litigation Expenses the indemnitee incurs during the period in which the indemnitee failed to give proper notice. Alternative 2 (a) Notice of Third Party Claim. If any third party makes any claim or brings any action, suit or proceeding against the indemnitee (a “Third Party Claim”) with respect to which the indemnitor may have liability, the indemnitee must give prompt written notice to the indemnitor of the Third Party Claim and deliver a copy of the claim, process, and legal pleadings with respect to the Third Party Claim. Receipt of this notice is a condition precedent to the indemnitor’s liability with respect to the Third Party Claim. Page 299 The indemnitor’s assumption of the defense of the Third Party Claim does not constitute an admission by the indemnitor that it is required to indemnify the indemnitee for the Third Party Claim. *** Promptly after sending the notice, the indemnitor shall choose and employ independent legal counsel reasonably acceptable to the indemnitee . . . . Page 300 Defense, Compromise, and Settlement of Third Party Claims. If, in the reasonable opinion of the indemnitee, any Third Party Claim or the litigation or its resolution involves an issue or matter that could have a material adverse effect on the business, operations, assets, properties or prospects of the indemnitee (including, without limitation, the administration of the tax returns and responsibilities under the tax laws of the indemnitee), (a) the indemnitee has the right to control the defense, compromise, and settlement of the Third Party Claim undertaken by the indemnitor; and (b) the Litigation Expenses of the indemnitee in connection with the defense, compromise, and settlement are included as part of the indemnification obligations of the indemnitor under this Article. If the indemnitee elects to exercise its right under subsection (a), the indemnitor has the right to participate in, but not control, the defense, compromise, and settlement of the Third Party Claim at its sole cost and expense. Page 302 The indemnitor’s failure to (a) notify the indemnitee that it is assuming the defense of a Third Party Claim, or (b) defend the Third Party Claim, does not waive the indemnitor’s right to dispute that the Third Party Claim is one for which the indemnitor is required to indemnify the indemnitee. Page 303 Arbitration. (a) Agreement to Arbitrate. The parties shall resolve all disputes arising under this Article (other than claims in equity) by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Arbitration is to be by a single arbitrator experienced in the matters at issue and selected by the Indemnitor Representative and Buyer in accordance with the Commercial Arbitration Rules of the American Arbitration Association. (b) Location. The arbitration is to be held in such place in ________ as the arbitrator specifies (or any place agreed to by the Indemnitor Representative, Buyer and the arbitrator). (c) Binding Decision. The decision of the arbitrator is final and binding as to any matters submitted under this Article. If necessary, the Indemnitor Representative or Buyer may enforce and satisfy the arbitrator’s decision in any court having jurisdiction either over the subject matter or over any of the parties to this Agreement. (d) Expenses. If the arbitrator renders (i) a decision against a party, that party shall pay all Litigation Expenses incurred in connection with the arbitration proceeding (the “Arbitration Expenses”); (ii) no decision, the Indemnitors (as one party) and the Indemnitees (as the other party) shall each pay the Arbitration Expenses it incurred; or (iii) a compromise decision, the arbitrator shall determine by percentage the relative merits of the Indemnitors’ (as one party) and the Indemnitees’ (as the other party) positions, and each party shall pay its pro rata share of the Arbitration Expenses.