Common use of Case Allocation Clause in Contracts

Case Allocation. (a) As of the Distribution Date, Spinco shall, and, as applicable, shall cause the other members of the Spinco Group to, (i) diligently conduct, at its sole cost and expense, the defense of the Spinco Actions, including the Spinco Actions listed on Schedule 5.01(a) and any applicable future Spinco Actions; (ii) notify PNX of material litigation developments related to the Spinco Actions; and (iii) agree not to file any cross claim or institute separate legal proceedings against PNX in relation to the Spinco Actions. (b) As of the Distribution Date, PNX shall, and, as applicable, shall cause the other members of the PNX Group to, (i) diligently conduct, at its sole cost and expense, the defense of the PNX Actions, including the PNX Actions listed on Schedule 5.01(b) and any applicable future PNX Actions; and (ii) agree not to file any cross claim or institute separate legal proceedings against Spinco in relation to the PNX Actions. (c) Notwithstanding anything in this Section 5.01 to the contrary, PNX shall have the right to participate in the defense of any Spinco Action and to be represented by attorneys of its own choosing and at its sole cost and expense. (d) Spinco shall indemnify and hold harmless PNX and other members of the PNX Group against Liabilities arising in connection with Spinco Actions, and PNX shall indemnify and hold harmless Spinco and other members of the Spinco Group against Liabilities arising in connection with PNX Actions, in each case, in accordance with the indemnification provisions of Article VI. (e) As of the Distribution Date, PNX shall, and, as applicable, shall cause the other members of the PNX Group to, (i) diligently conduct the defense of the Joint Actions, including the Joint Actions listed on Schedule 5.01(e) and any applicable future Joint Actions; (ii) notify Spinco of material litigation developments related to the Joint Actions; and (iii) agree not to file any cross claim or institute separate legal proceedings against Spinco in relation to the Joint Actions; provided that if it becomes clear that a Joint Action relates primarily to the Spinco Business then from and after such time such Joint Action shall instead be deemed to be a Spinco Action subject to clause (a) above; and provided, further, that if it becomes clear that a Joint Action does not relate primarily to the Spinco Business then from and after such time such Joint Action shall instead be deemed to be a PNX Action subject to clause (b) above. PNX and Spinco shall regularly meet to review and discuss the progress of the Joint Actions and the classification thereof. Any dispute regarding whether an Action remains a Joint Action shall be settled pursuant to the dispute resolution mechanics of Section 13.15. (f) Until such time as the respective Liabilities of the members of the PNX Group and Spinco Group are determined in connection with any Joint Action, PNX and Spinco shall each pay 50% of the cost and expenses associated with the defense of such Joint Action. The parties agree that, to effect the foregoing sharing arrangement, counsel in connection with any Joint Action shall be instructed to render separate bills to PNX and to Spinco. In the event that either Party pays any costs or expenses that are the responsibility of the other Party hereunder, the responsible Party shall promptly reimburse the other Party for such amounts. Spinco shall have the right to employ separate counsel to represent it and members of the Spinco Group if Spinco shall have reasonably concluded that there may be a legal defense available to members of the Spinco Group that are different from or in addition to those available to PNX or representation of both PNX (or any member of the PNX Group) and Spinco (or any member of the Spinco Group) by the same counsel would be inappropriate due to actual or potential differing interests between them, in which case fees and expenses of such counsel incurred by Spinco shall be included in the amounts allocated by the next sentence of this paragraph (f). Upon the determination of Liability of the members of the PNX Group and Spinco Group in connection with any Joint Action, Spinco shall indemnify and hold harmless PNX and other members of the PNX Group against the portion of such Liabilities relating primarily to the Spinco Business, and PNX shall indemnify and hold harmless Spinco and other members of the Spinco Group against the portion of such Liabilities relating primarily to the PNX Business, including, in each case, the costs and expenses associated with the defense of such Joint Action since the beginning of such Joint Action, which shall be allocated between PNX and Spinco in proportion to the Liability with respect to such Joint Action of members of the PNX Group, on the one hand, and members of the Spinco Group, on the other hand. Indemnification pursuant to this Section 5.01(f) shall be in accordance with the indemnification provisions of Article VI.

Case Allocation. (a) As of the Distribution Date, Spinco Patriot shall, and, as applicable, shall cause the other members of the Spinco Patriot Group to, (i) diligently conduct, at its sole cost and expense, the defense of the Spinco Patriot Actions, including the Spinco Patriot Actions listed on Schedule 5.01(a) and any applicable future Spinco Patriot Actions; (ii) notify PNX PEC of material litigation developments related to the Spinco Patriot Actions; and (iii) agree not to file any cross claim or institute separate legal proceedings against PNX PEC in relation to the Spinco Patriot Actions. (b) As of the Distribution Date, PNX PEC shall, and, as applicable, shall cause the other members of the PNX PEC Group to, (i) diligently conduct, at its sole cost and expense, the defense of the PNX PEC Actions, including the PNX PEC Actions listed on Schedule 5.01(b) and any applicable future PNX PEC Actions; (ii) notify Patriot of material litigation developments related to the PEC Actions; and (iiiii) agree not to file any cross claim or institute separate legal proceedings against Spinco Patriot in relation to the PNX PEC Actions. (c) Notwithstanding anything in this Section 5.01 to the contrary, PNX PEC shall have the right to participate in the defense of any Spinco Patriot Action and to be represented by attorneys of its own choosing and at its sole cost and expense, and Patriot shall have the right to participate in the defense of any PEC Action and to be represented by attorneys of its own choosing and at its sole cost and expense. (d) Spinco Patriot shall indemnify and hold harmless PNX PEC and other members of the PNX PEC Group against Liabilities arising in connection with Spinco Patriot Actions, and PNX PEC shall indemnify and hold harmless Spinco Patriot and other members of the Spinco Patriot Group against Liabilities arising in connection with PNX PEC Actions, in each case, in accordance with the indemnification provisions of Article VI. (e) As of the Distribution Date, PNX PEC shall, and, as applicable, shall cause the other members of the PNX PEC Group to, (i) diligently conduct the defense of the Joint Actions, including the Joint Actions listed on Schedule 5.01(e) and any applicable future Joint Actions; (ii) notify Spinco Patriot of material litigation developments related to the Joint Actions; and (iii) agree not to file any cross claim or institute separate legal proceedings against Spinco Patriot in relation to the Joint Actions; provided that if it becomes clear that a Joint Action relates primarily to the Spinco Patriot Business then from and after such time such Joint Action shall instead be deemed to be a Spinco Patriot Action subject to clause (a) above; and provided, further, that if it becomes clear that a Joint Action does not relate primarily to the Spinco Patriot Business then from and after such time such Joint Action shall instead be deemed to be a PNX PEC Action subject to clause (b) above. PNX PEC and Spinco Patriot shall regularly meet to review and discuss the progress of the Joint Actions and the classification thereof. Any dispute regarding whether an Action remains a Joint Action shall be settled settle pursuant to the dispute resolution mechanics of Section 13.1515.15. (f) Until such time as the respective Liabilities of the members of the PNX PEC Group and Spinco Patriot Group are determined in connection with any Joint Action, PNX PEC and Spinco Patriot shall each pay 50% of the cost and expenses associated with the defense of such Joint Action. The parties agree that, to effect the foregoing sharing arrangement, counsel in connection with any Joint Action shall be instructed to render separate bills to PNX PEC and to SpincoPatriot. In the event that either Party PEC pays any costs or expenses that are the responsibility of the other Party Patriot hereunder, the responsible Party Patriot shall promptly reimburse the other Party PEC for such amounts. Spinco Patriot shall have the right to employ separate counsel to represent it and members of the Spinco Patriot Group if Spinco Patriot shall have reasonably concluded that there may be a legal defense available to members of the Spinco Patriot Group that are different from or in addition to those available to PNX PEC or representation of both PNX PEC (or any member of the PNX PEC Group) and Spinco Patriot (or any member of the Spinco Patriot Group) by the same counsel would be inappropriate due to actual or potential differing interests between them, in which case fees and expenses of such counsel incurred by Spinco Patriot shall be included in the amounts allocated by the next sentence of this paragraph (f). Upon the determination of Liability of the members of the PNX PEC Group and Spinco Patriot Group in connection with any Joint Action, Spinco Patriot shall indemnify and hold harmless PNX PEC and other members of the PNX PEC Group against the portion of such Liabilities relating primarily to the Spinco Patriot Business, and PNX PEC shall indemnify and hold harmless Spinco Patriot and other members of the Spinco Patriot Group against the portion of such Liabilities relating primarily to the PNX PEC Business, including, in each case, the costs and expenses associated with the defense of such Joint Action since the beginning of such Joint Action, which shall be allocated between PNX PEC and Spinco Patriot in proportion to the Liability with respect to such Joint Action of members of the PNX PEC Group, on the one hand, and members of the Spinco Patriot Group, on the other hand. Indemnification pursuant to this Section 5.01(f) shall be in accordance with the indemnification provisions of Article VI. (g) As of the Distribution Date, PEC shall, and shall cause the other members of the PEC Group to, transfer those actions that are primarily related to the Patriot Business in which one or more members of the PEC Group is a plaintiff or claimant, all of which are listed in Schedule 5.01(g) (collectively, the “Transferred Patriot Actions”), to Patriot, and Patriot shall be responsible for the continued prosecution of such Actions, and for costs and expenses thereof, and shall receive and have the benefit of all of the proceeds of the Transferred Patriot Actions. (h) As of the Distribution Date, Patriot shall, and shall cause the other members of the Patriot Group to, transfer those actions that are not primarily related to the Patriot Business in which one or more members of the Patriot Group is a plaintiff or claimant, all of which are listed in Schedule 5.01(h) (collectively, the “Transferred PEC Actions”), to PEC, and PEC shall be responsible for the continued prosecution of such Actions, and for costs and expenses thereof, and shall receive and have the benefit of all of the proceeds of the Transferred PEC Actions. (i) As of the Distribution Date, PEC shall assume the responsibility of litigating the case of Clintwood Elkhorn Mining Co. v. United States, pending before the United States Court of Appeals for the Federal Circuit (the “Black Lung Case”). PEC shall receive and have the benefit of all of the proceeds of the Black Lung Case, including interest, and shall be responsible for the payment of attorneys’ fees and costs. (j) As of the Distribution Date, PEC shall assume the responsibility of litigating Consolidated Coal Co.

Case Allocation. (a) As of the Distribution Date, Spinco Patriot shall, and, as applicable, shall cause the other members of the Spinco Patriot Group to, (i) diligently conduct, at its sole cost and expense, the defense of the Spinco Patriot Actions, including the Spinco Patriot Actions listed on Schedule 5.01(a) and any applicable future Spinco Patriot Actions; (ii) notify PNX PEC of material litigation developments related to the Spinco Patriot Actions; and (iii) agree not to file any cross claim or institute separate legal proceedings against PNX PEC in relation to the Spinco Patriot Actions. (b) As of the Distribution Date, PNX PEC shall, and, as applicable, shall cause the other members of the PNX PEC Group to, (i) diligently conduct, at its sole cost and expense, the defense of the PNX PEC Actions, including the PNX PEC Actions listed on Schedule 5.01(b) and any applicable future PNX PEC Actions; (ii) notify Patriot of material litigation developments related to the PEC Actions; and (iiiii) agree not to file any cross claim or institute separate legal proceedings against Spinco Patriot in relation to the PNX PEC Actions. (c) Notwithstanding anything in this Section 5.01 to the contrary, PNX PEC shall have the right to participate in the defense of any Spinco Patriot Action and to be represented by attorneys of its own choosing and at its sole cost and expense, and Patriot shall have the right to participate in the defense of any PEC Action and to be represented by attorneys of its own choosing and at its sole cost and expense. (d) Spinco Patriot shall indemnify and hold harmless PNX PEC and other members of the PNX PEC Group against Liabilities arising in connection with Spinco Patriot Actions, and PNX PEC shall indemnify and hold harmless Spinco Patriot and other members of the Spinco Patriot Group against Liabilities arising in connection with PNX PEC Actions, in each case, in accordance with the indemnification provisions of Article VI. (e) As of the Distribution Date, PNX PEC shall, and, as applicable, shall cause the other members of the PNX PEC Group to, (i) diligently conduct the defense of the Joint Actions, including the Joint Actions listed on Schedule 5.01(e) and any applicable future Joint Actions; (ii) notify Spinco Patriot of material litigation developments related to the Joint Actions; and (iii) agree not to file any cross claim or institute separate legal proceedings against Spinco Patriot in relation to the Joint Actions; provided that if it becomes clear that a Joint Action relates primarily to the Spinco Patriot Business then from and after such time such Joint Action shall instead be deemed to be a Spinco Patriot Action subject to clause (a) above; and provided, further, that if it becomes clear that a Joint Action does not relate primarily to the Spinco Patriot Business then from and after such time such Joint Action shall instead be deemed to be a PNX PEC Action subject to clause (b) above. PNX PEC and Spinco Patriot shall regularly meet to review and discuss the progress of the Joint Actions and the classification thereof. Any dispute regarding whether an Action remains a Joint Action shall be settled settle pursuant to the dispute resolution mechanics of Section 13.1515.15. (f) Until such time as the respective Liabilities of the members of the PNX PEC Group and Spinco Patriot Group are determined in connection with any Joint Action, PNX PEC and Spinco Patriot shall each pay 50% of the cost and expenses associated with the defense of such Joint Action. The parties agree that, to effect the foregoing sharing arrangement, counsel in connection with any Joint Action shall be instructed to render separate bills to PNX PEC and to SpincoPatriot. In the event that either Party PEC pays any costs or expenses that are the responsibility of the other Party Patriot hereunder, the responsible Party Patriot shall promptly reimburse the other Party PEC for such amounts. Spinco Patriot shall have the right to employ separate counsel to represent it and members of the Spinco Patriot Group if Spinco Patriot shall have reasonably concluded that there may be a legal defense available to members of the Spinco Patriot Group that are different from or in addition to those available to PNX PEC or representation of both PNX PEC (or any member of the PNX PEC Group) and Spinco Patriot (or any member of the Spinco Patriot Group) by the same counsel would be inappropriate due to actual or potential differing interests between them, in which case fees and expenses of such counsel incurred by Spinco Patriot shall be included in the amounts allocated by the next sentence of this paragraph (f). Upon the determination of Liability of the members of the PNX PEC Group and Spinco Patriot Group in connection with any Joint Action, Spinco Patriot shall indemnify and hold harmless PNX PEC and other members of the PNX PEC Group against the portion of such Liabilities relating primarily to the Spinco Patriot Business, and PNX PEC shall indemnify and hold harmless Spinco Patriot and other members of the Spinco Patriot Group against the portion of such Liabilities relating primarily to the PNX PEC Business, including, in each case, the costs and expenses associated with the defense of such Joint Action since the beginning of such Joint Action, which shall be allocated between PNX PEC and Spinco Patriot in proportion to the Liability with respect to such Joint Action of members of the PNX PEC Group, on the one hand, and members of the Spinco Patriot Group, on the other hand. Indemnification pursuant to this Section 5.01(f) shall be in accordance with the indemnification provisions of Article VI. (g) [Intentionally Omitted]. (h) [Intentionally Omitted]. (i) As of the Distribution Date, PEC shall assume the responsibility of litigating the case of Clintwood Elkhorn Mining Co. v. United States, pending before the United States Court of Appeals for the Federal Circuit (the “Black Lung Case”). PEC shall receive and have the benefit of all of the proceeds of the Black Lung Case, including interest, and shall be responsible for the payment of attorneys’ fees and costs. (j) As of the Distribution Date, PEC shall assume the responsibility of litigating Consolidated Coal Co.