Common use of Shared Claims Clause in Contracts

Shared Claims. From and after the Closing Date, the Seller shall be responsible for managing and pursuing Shared Claims in Seller's sole discretion. The Seller shall be responsible for all legal expenses, fees, project management costs or consulting costs incurred by it arising from such Shared Claims. The Buyer shall not incur, nor permit the Company to incur, any expenses relating to such Shared Claims without the prior written consent of the Seller. If, after the Closing Date, the Buyer or the Company desires to initiate a project construction claim, action, suit, proceeding, charge or complaint against a general contractor, construction manager, owner or other Third Party with respect to a Seller Project, then prior to taking any action with respect thereto, Buyer shall discuss the merits of such claim, action, suit, proceeding, charge or complaint with Parent. Parent shall determine in its sole discretion whether to pursue such claim, action, suit, proceeding, charge or complaint and shall consider in good faith Buyer's recommendations, including Buyer's evaluation of the merits and selection of counsel. If any such claim, action, suit, proceeding, charge or complaint is initiated by Seller or the Parent, then such claim, action, suit, proceeding, charge or complaint shall be deemed a Shared Claim for all purposes hereunder. The Buyer hereby agrees to cooperate with the Seller and the Seller Entities and their counsel, make available their personnel (including the personnel of ABW) and provide such testimony and access to their books and records as shall be reasonably necessary in connection with the pursuit of any Shared Claim. The Seller may pursue, settle or abandon any Shared Claim in its sole discretion. Any proceeds or settlement of a Shared Claim shall be allocated as follows: (a) until such time as the Shared Claims Recovery Amount plus the Project Savings equals $4,000,000 and Parent/Seller has received any and all amounts of the Shared Claims Recovery Amount and the Project Savings to which it is entitled under this Agreement, one hundred percent (100%) to the Parent/Seller, and (b) at all times thereafter, in accordance with Section 5(l) below. The Parties hereby acknowledge that Seller shall be entitled to first recover all expenses incurred by the Company and the Seller Entities in connection with all Shared Claims. If, after the Closing Date, the Buyer proposes to pursue or initiate a claim with respect to a Seller Project against a Third Party, and the Seller or Parent declines to pursue or initiate such claim, then the Buyer may cause the Company to file such a claim in the name of the Company, provided that (i) the Buyer and the Company agree to indemnify and hold the Seller and Parent harmless from any and all costs, losses, expenses, attorneys fees and counterclaims arising therefrom, (ii) any amounts collected from such Third Party are divided equally between the Buyer and the Parent and are not be deemed to be a part of the Shared Claims Recovery Amount, and (iii) the Buyer's or Company's costs with respect to such claim are not a Reimbursable Expense (as defined in Exhibit B).

Shared Claims. From and after the Closing Date, the Seller shall be responsible for managing and pursuing Shared Claims in Seller's sole discretion. The Seller shall be responsible for all legal expenses, fees, project management costs or consulting costs incurred by it arising from such Shared Claims. The Buyer shall not incur, nor permit the Company to incur, any expenses relating to such Shared Claims without the prior written consent of the Seller. If, after the Closing Date, the Buyer or the Company desires to initiate a project construction claim, action, suit, proceeding, charge or complaint against a general contractor, construction manager, owner or other Third Party with respect to a Seller Project, then prior to taking any action with respect thereto, Buyer shall discuss the merits of such claim, action, suit, proceeding, charge or complaint with Parent. Parent shall determine in its sole discretion whether to pursue such claim, action, suit, proceeding, charge or complaint and shall consider in good faith Buyer's recommendations, including Buyer's evaluation of the merits and selection of counsel. If any such claim, action, suit, proceeding, charge or complaint is initiated by Seller or the Parent, then such claim, action, suit, proceeding, charge or complaint shall be deemed a Shared Claim for all purposes hereunder. The Buyer hereby agrees to cooperate with the Seller and the Seller Entities and their counsel, make available their personnel (including the personnel of ABW) and provide such testimony and access to their books and records as shall be reasonably necessary in connection with the pursuit of any Shared Claim. The Seller may pursue, settle or abandon any Shared Claim in its sole discretion. Any proceeds or settlement of a Shared Claim shall be allocated as follows: (a) until such time as the Shared Claims Recovery Amount plus the Project Savings equals $4,000,000 and Parent/Seller has received any and all amounts of the Shared Claims Recovery Amount and the Project Savings to which it is entitled under this Agreement, one hundred percent (100%) to the Parent/Seller, and (b) at all times thereafter, in accordance with Section 5(l) below. The Parties hereby acknowledge that Seller shall be entitled to first recover all expenses incurred by the Company and the Seller Entities in connection with all Shared Claims. If, after the Closing Date, the Buyer proposes to pursue or initiate a claim with respect to a Seller Project against a Third Party, and the Seller or Parent declines to pursue or 22 initiate such claim, then the Buyer may cause the Company to file such a claim in the name of the Company, provided that (i) the Buyer and the Company agree to indemnify and hold the Seller and Parent harmless from any and all costs, losses, expenses, attorneys fees and counterclaims arising therefrom, (ii) any amounts collected from such Third Party are divided equally between the Buyer and the Parent and are not be deemed to be a part of the Shared Claims Recovery Amount, and (iii) the Buyer's or Company's costs with respect to such claim are not a Reimbursable Expense (as defined in Exhibit B).. (k)