Insurance Matters. (a) Parent and SpinCo agree to cooperate in good faith to provide for an orderly transition of insurance coverage from the date hereof through the Effective Time. In no event shall Parent, any other member of the Parent Group or any Parent Indemnitee have Liability or obligation whatsoever to any member of the SpinCo Group in the event that any (i) insurance policy or insurance policy related contract shall be terminated or otherwise cease to be in effect for any reason, shall be unavailable or inadequate to cover any Liability of any member of the SpinCo Group for any reason whatsoever or shall be cancelled, not renewed or not extended beyond the current expiration date or (ii) any insurer declines, denies, delays or obstructs any claim payment. (b) From and after the Effective Time, SpinCo, any member of the SpinCo Group or any of their respective employees (including former or inactive employees) shall cease to be insured by, shall have no access or availability to or under, shall not be entitled to make claims on or under and shall not be entitled to claim benefits from or seek coverage under, and shall not have any rights to or under, any of Parent’s or any member of the Parent Group’s insurance policies or any of their respective self-insured programs in place prior to the Effective Time. With respect to claims on or under the policies provided on Schedule 5.1(b) (collectively, the “Designated Policies”) SpinCo: (i) shall notify Parent, as promptly as practicable, of any incident, circumstance or occurrence that may lead to a claim made by Parent or any member of the Parent Group under a Designated Policy; (ii) shall, and shall cause the other members of the SpinCo Group to, at SpinCo’s sole cost and expense, cooperate with and assist Parent and the members of the Parent Group and share such information as is necessary in order to permit Parent and the members of the Parent Group to manage and conduct the insurance matters contemplated by this Section 5.1, including with respect to any claims by Parent or any member of the Parent Group under any Designated Policy; and (iii) shall exclusively bear (and neither Parent nor any members of the Parent Group shall have any obligation to repay or reimburse SpinCo or any member of the SpinCo Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts (including where any insurer declines, denies, delays or obstructs any claim payment) of all claims made with respect to any losses, damages and Liability incurred by any member of the SpinCo Group prior to the Effective Time under the Designated Policies. (c) At the Effective Time, SpinCo shall have in effect all insurance programs required to comply with SpinCo’s contractual obligations and such other Policies required by Law or as reasonably necessary or appropriate for companies operating a business similar to SpinCo’s. (d) Neither SpinCo nor any member of the SpinCo Group, in connection with any claim under any insurance policy of Parent or any member of the Parent Group (including the Designated Policies), shall take any action that would be reasonably likely to (i) have a materially adverse impact on the then-current relationship between Parent or any member of the Parent Group, on the one hand, and the applicable insurance company, on the other hand; (ii) result in the applicable insurance company terminating or materially reducing coverage, or materially increasing the amount of any premium owed by Parent or any member of the Parent Group under the applicable insurance policy; or (iii) otherwise compromise, jeopardize or interfere in any material respect with the rights of Parent or any member of the Parent Group under the applicable insurance policy. (e) Parent shall retain the exclusive right to control its insurance policies and programs, including the right to exhaust, settle, release, commute, buy-back or otherwise resolve disputes with respect to any of its insurance policies and programs and to amend, modify or waive any rights under any such insurance policies and programs and no member of the SpinCo Group shall erode, exhaust, settle, release, commute, buy-back or otherwise resolve disputes with Parent’s insurers with respect to any of Parent’s insurance policies and programs, or amend, modify or waive any rights under any such insurance policies and programs. SpinCo shall cooperate with Parent and share such information as is necessary in order to permit Parent to manage and conduct its insurance matters as Parent deems appropriate. Each Party and any member of its applicable Group has the sole right to settle or otherwise resolve Third-Party Claims made against it or any member of its applicable Group covered under an applicable insurance policy. Notwithstanding anything in the foregoing to the contrary, Parent shall have the sole right to settle or otherwise resolve Third-Party Claims covered under a Designated Policy without the prior written consent of SpinCo unless such settlement (i) involves any admission, finding or determination of wrongdoing or violation of Law by any member of the SpinCo Group or (ii) does not provide for a full, unconditional and irrevocable release of the applicable member(s) of the SpinCo Group from all Liability in connection with the Third-Party Claim, in which case Parent shall not settle or otherwise resolve such Third-Party Claims without the prior written consent of SpinCo (which consent may not be unreasonably withheld, delayed or conditioned). (f) This Agreement shall not be considered as an attempted assignment of any policy of insurance or as a contract of insurance and shall not be construed to waive any right or remedy of any member of the Parent Group in respect of any insurance policy or any other contract or policy of insurance. (g) SpinCo does hereby, for itself and each other member of the SpinCo Group, agree that no member of the Parent Group shall have any Liability whatsoever as a result of the insurance policies and practices of Parent and the members of the Parent Group as in effect at any time, including as a result of the level or scope of any such insurance, the creditworthiness of any insurance carrier, the terms and conditions of any policy, or the adequacy or timeliness of any notice to any insurance carrier with respect to any claim or potential claim or otherwise.
Appears in 4 contracts
Samples: Separation and Distribution Agreement (Vestis Corp), Separation and Distribution Agreement (Aramark), Separation and Distribution Agreement (Vestis Corp)
Insurance Matters. (a) Parent and SpinCo agree to cooperate in good faith to provide for an orderly transition of insurance coverage from the date hereof through the Effective Time. In no event shall Parent, any other member of the Parent Group or any Parent Indemnitee have Liability or obligation whatsoever to any member of the SpinCo Group in the event that any (i) insurance policy or insurance policy related contract shall be terminated or otherwise cease to be in effect for any reason, or shall be unavailable or inadequate to cover any Liability of any member of the SpinCo Group for any reason whatsoever or shall be cancelled, not renewed or not extended beyond the current expiration date or (ii) any insurer declines, denies, delays or obstructs any claim paymentwhatsoever.
(b) From and after the Effective Time, SpinCowith respect to any losses, damages and Liability incurred by any member of the SpinCo Group or any of their respective employees (including former or inactive employees) shall cease to be insured by, shall have no access or availability to or under, shall not be entitled to make claims on or under and shall not be entitled to claim benefits from or seek coverage under, and shall not have any rights to or under, any of Parent’s or any member of the Parent Group’s insurance policies or any of their respective self-insured programs in place prior to the Effective Time. With respect , Parent will provide SpinCo with access to, and SpinCo may make claims under, Parent’s insurance policies in place immediately prior to the Effective Time (and any extended reporting periods for claims on or under made policies) and Parent’s historical policies of insurance, but solely to the extent that such policies provided coverage for members of the SpinCo Group prior to the Effective Time; provided that such access to, and the right to make claims under, such insurance policies, shall be subject to the terms, conditions and exclusions of such insurance policies, including but not limited to any limits on Schedule 5.1(b) (collectivelycoverage or scope, any deductibles, self-insured retentions and other fees and expenses, and shall be subject to the “Designated Policies”) SpinCofollowing additional conditions:
(i) SpinCo shall notify Parent, as promptly as practicable, of any incident, circumstance or occurrence that may lead to a claim made by Parent or any member of the Parent Group under a Designated PolicySpinCo pursuant to this Section 5.1(b);
(ii) shall, SpinCo and shall cause the other members of the SpinCo Group toshall indemnify, at SpinCo’s sole cost hold harmless and expense, cooperate with and assist reimburse Parent and the members of the Parent Group for any deductibles, self-insured retention, fees, indemnity payments, settlements, judgments, legal fees, allocated claims expenses and share such information as is necessary in order to permit claim handling fees, and other expenses incurred by Parent and the or any members of the Parent Group to manage and conduct the extent resulting from any access to, or any claims made by SpinCo or any other members of the SpinCo Group under, any insurance matters contemplated by provided pursuant to this Section 5.15.1(b), including with respect to any whether such claims are made by Parent SpinCo, its employees or any member of the Parent Group under any Designated Policythird Persons; and
(iii) SpinCo shall exclusively bear (and neither Parent nor any members of the Parent Group shall have any obligation to repay or reimburse SpinCo or any member of the SpinCo Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts (including where any insurer declines, denies, delays or obstructs any claim payment) of all such claims made with respect to any losses, damages and Liability incurred by SpinCo or any member of the SpinCo Group under the policies as provided for in this Section 5.1(b). In the event an insurance policy aggregate is exhausted, or believed likely to be exhausted, due to noticed claims, the SpinCo Group, on the one hand, and the Parent Group, on the other hand, shall be responsible for their pro rata portion of the reinstatement premium, if any, based upon the losses of such Group submitted to Parent’s insurance carrier(s) (including any submissions prior to the Effective Time). To the extent that the Parent Group or the SpinCo Group is allocated more than its pro rata portion of such premium due to the timing of losses submitted to Parent’s insurance carrier(s), the other party shall promptly pay the first party an amount so that each Group has been properly allocated its pro rata portion of the reinstatement premium. Subject to the following sentence, a Party may elect not to reinstate the policy aggregate. In the event that a Party elects not to reinstate the policy aggregate, it shall provide prompt written notice to the other Party. A Party which elects to reinstate the policy aggregate shall be responsible for all reinstatement premiums and other costs associated with such reinstatement. In the event that any member of the Parent Group incurs any losses, damages or Liability prior to or in respect of the period prior to the Effective Time for which such member of the Parent Group is entitled to coverage under SpinCo’s third-party insurance policies, the Designated Policiessame process pursuant to this Section 5.1(b) shall apply, substituting “Parent” for “SpinCo” and “SpinCo” for “Parent.”
(c) Except as provided in Section 5.1(b), from and after the Effective Time, neither SpinCo nor any member of the SpinCo Group shall have any rights to or under any of the insurance policies of Parent or any other member of the Parent Group. At the Effective Time, SpinCo shall have in effect all insurance programs required to comply with SpinCo’s contractual obligations and such other Policies required by Law or as reasonably necessary or appropriate for companies operating a business similar to SpinCo’s.
(d) Neither SpinCo nor any member of the SpinCo Group, in connection with any making a claim under any insurance policy of Parent or any member of the Parent Group (including the Designated Policies)pursuant to this Section 5.1, shall take any action that would be reasonably likely to (i) have a materially material and adverse impact on the then-current relationship between Parent or any member of the Parent Group, on the one hand, and the applicable insurance company, on the other hand; (ii) result in the applicable insurance company terminating or materially reducing coverage, or materially increasing the amount of any premium owed by Parent or any member of the Parent Group under the applicable insurance policy; or (iii) otherwise compromise, jeopardize or interfere in any material respect with the rights of Parent or any member of the Parent Group under the applicable insurance policy.
(e) All payments and reimbursements by SpinCo pursuant to this Section 5.1 will be made within forty-five (45) days after SpinCo’s receipt of an invoice therefor from Parent. Parent shall retain the exclusive right to control its insurance policies and programs, including the right to exhaust, settle, release, commute, buy-back or otherwise resolve disputes with respect to any of its insurance policies and programs and to amend, modify or waive any rights under any such insurance policies and programs, notwithstanding whether any such policies or programs apply to any SpinCo Liabilities and/or claims SpinCo has made or could make in the future, and no member of the SpinCo Group shall erode, exhaust, settle, release, commute, buy-back buyback or otherwise resolve disputes with Parent’s insurers with respect to any of Parent’s insurance policies and programs, or amend, modify or waive any rights under any such insurance policies and programs. SpinCo shall cooperate with Parent and share such information as is reasonably necessary in order to permit Parent to manage and conduct its insurance matters as Parent deems appropriate. Each Parent shall use commercially reasonable efforts to obtain extended reporting for any claims made Policies or portions of Policies with claims made coverage features for acts or omissions by any member of the SpinCo Group incurred prior to the Effective Time. For the avoidance of doubt, each Party and any member of its applicable Group has the sole right to settle or otherwise resolve Third-Party Claims third party claims made against it or any member of its applicable Group covered under an applicable insurance policy. Notwithstanding anything in the foregoing to the contrary, Parent shall have the sole right to settle or otherwise resolve Third-Party Claims covered under a Designated Policy without the prior written consent of SpinCo unless such settlement (i) involves any admission, finding or determination of wrongdoing or violation of Law by any member of the SpinCo Group or (ii) does not provide for a full, unconditional and irrevocable release of the applicable member(s) of the SpinCo Group from all Liability in connection with the Third-Party Claim, in which case Parent shall not settle or otherwise resolve such Third-Party Claims without the prior written consent of SpinCo (which consent may not be unreasonably withheld, delayed or conditioned).
(f) This Agreement shall not be considered as an attempted assignment of any policy of insurance or as a contract of insurance and shall not be construed to waive any right or remedy of any member of the Parent Group in respect of any insurance policy or any other contract or policy of insurance.
(g) SpinCo does hereby, for itself and each other member of the SpinCo Group, agree that no member of the Parent Group shall have any Liability whatsoever as a result of the insurance policies and practices of Parent and the members of the Parent Group as in effect at any time, including as a result of the level or scope of any such insurance, the creditworthiness of any insurance carrier, carrier or the terms and conditions of any policy, or the adequacy or timeliness of any notice to any insurance carrier with respect to any claim or potential claim or otherwise.
Appears in 4 contracts
Samples: Separation and Distribution Agreement (Tegna Inc), Separation and Distribution Agreement (Gannett Co., Inc.), Separation and Distribution Agreement (Gannett SpinCo, Inc.)
Insurance Matters. (a) Parent KAR and SpinCo agree to cooperate in good faith to provide for an orderly transition of insurance coverage from the date hereof through the Effective Time. In no event shall ParentKAR, any other member of the Parent KAR Group or any Parent KAR Indemnitee have any Liability or obligation whatsoever to any member of the SpinCo Group in the event that any (i) insurance policy or other contract or policy of insurance policy related contract shall be terminated or otherwise cease to be in effect for any reason, shall be unavailable or inadequate to cover any Liability of any member of the SpinCo Group for any reason whatsoever or shall not be cancelled, not renewed or not extended beyond the current expiration date or (ii) any insurer declines, denies, delays or obstructs any claim paymentdate.
(b) From and after the Effective Time, SpinCowith respect to any losses, damages and Liability incurred by any member of the SpinCo Group Group, or any arising out of their respective employees (including former facts, events or inactive employees) shall cease to be insured bycircumstances occurring, shall have no access or availability to or under, shall not be entitled to make claims on or under and shall not be entitled to claim benefits from or seek coverage under, and shall not have any rights to or under, any of Parent’s or any member of the Parent Group’s insurance policies or any of their respective self-insured programs in place prior to the Effective Time. With respect , KAR will provide SpinCo with access to, and SpinCo may, upon ten (10) days’ prior written notice to KAR, make claims on or under under, KAR’s third-party insurance policies in place immediately prior to the Effective Time and KAR’s historical third-party policies of insurance, but solely to the extent that such policies provided on Schedule 5.1(b) (collectivelycoverage for SpinCo Liabilities or Liabilities arising from or in connection with actions, inactions, events, omissions, conditions, facts or circumstances occurring or existing prior to the Effective Time, in each case relating to, arising out of or resulting from the SpinCo Business, the “Designated Policies”) SpinCo Assets or the SpinCo Liabilities; provided that such access to, and the right to make claims under, such insurance policies shall be subject to the terms and conditions of such insurance policies, including any limits on coverage or scope, any deductibles, self-insured retentions, loss reimbursements and other fees and expenses, and any retrospectively rated or other premium adjustments, resulting from such losses, damages or Liability. Any deductible, loss reimbursement, other fee or expense, or retrospectively rated or other premium adjustment, resulting from such losses, damages or Liability shall be SpinCo’s sole responsibility. SpinCo’s access shall be subject to the following additional conditions:
(i) SpinCo shall notify Parentreport any claim to KAR, as promptly as practicable, of and in any incident, circumstance event in sufficient time so that such claim may be made in accordance with KAR’s claim reporting procedures in effect immediately prior to the Effective Time (or occurrence that may lead in accordance with any modifications to a claim made such procedures after the Effective Time communicated by Parent or any member of the Parent Group under a Designated PolicyKAR to SpinCo in writing);
(ii) shallSpinCo may, in its sole discretion, report such claim to the insurers on its and/or SpinCo’s behalf with a request that the insurers defend and indemnify it and/or SpinCo;
(iii) SpinCo and the members of the SpinCo Group shall cause indemnify, hold harmless and reimburse KAR and the members of the KAR Group for any fees and expenses incurred by KAR or any members of the KAR Group to the extent resulting from any access to, any claims made by SpinCo or any other members of the SpinCo Group tounder, at SpinCo’s sole cost and expense, cooperate with and assist Parent and the members of the Parent Group and share such information as is necessary in order any insurance provided pursuant to permit Parent and the members of the Parent Group to manage and conduct the insurance matters contemplated by this Section 5.15.1(b), including with respect to any indemnity payments, settlements, judgments, legal fees and allocated claim or loss adjusting expenses and claim handling fees, whether such claims are made by Parent SpinCo, its employees or any member of the Parent Group under any Designated PolicyThird Parties; and
(iiiiv) SpinCo shall exclusively bear (and neither Parent KAR nor any members of the Parent KAR Group shall have any obligation to repay or reimburse SpinCo or any member of the SpinCo Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts (including where any insurer declines, denies, delays or obstructs any claim payment) of all such claims made with respect to any losses, damages and Liability incurred by SpinCo or any member of the SpinCo Group under the policies as provided for in this Section 5.1(b). In the event that any member of the KAR Group incurs any losses, damages or Liability prior to or in respect of the period prior to the Effective Time for which such member of the KAR Group is entitled to coverage under SpinCo’s third-party insurance policies, the Designated Policiessame process pursuant to this Section 5.1(b) shall apply, substituting “KAR” for “SpinCo” and “SpinCo” for “KAR.”
(c) Except as provided in Section 5.1(b), from and after the Effective Time, neither SpinCo nor any member of the SpinCo Group shall have any rights to or under any of the insurance policies of KAR or any other member of the KAR Group. At the Effective Time, SpinCo shall have in effect all insurance programs required to comply with SpinCo’s contractual obligations and such other Policies insurance policies required by Law or as reasonably necessary or appropriate for companies operating a business similar to SpinCo’s. Such insurance programs may include general liability, commercial auto liability, workers’ compensation, employer’s liability, cyber security, product liability, professional services liability, property, open lot, employment practices liability, employee dishonesty/crime, directors and officers liability and fiduciary liability.
(d) Neither SpinCo nor any member of the SpinCo Group, in connection with any making a claim under any insurance policy of Parent KAR or any member of the Parent KAR Group (including the Designated Policies)pursuant to this Section 5.1, shall take any action that would be reasonably likely to (i) have a materially an adverse impact on the then-current relationship between Parent KAR or any member of the Parent KAR Group, on the one hand, and the applicable insurance company, on the other hand; , (ii) result in the applicable insurance company terminating or materially reducing coverage, or materially increasing the amount of any premium owed by Parent KAR or any member of the Parent KAR Group under the applicable insurance policy; , or (iii) otherwise compromise, jeopardize or interfere in any material respect with the rights of Parent KAR or any member of the Parent KAR Group under the applicable insurance policy.
(e) Parent All payments and reimbursements by SpinCo pursuant to this Section 5.1 will be made within fifteen (15) days after SpinCo’s receipt of an invoice therefor from KAR. If KAR incurs costs to enforce SpinCo’s obligations herein, SpinCo agrees to indemnify and hold harmless KAR for such enforcement costs, including reasonable attorneys’ fees pursuant to Section 4.6. KAR shall retain the exclusive right to control its insurance policies and programs, including the right under the policies or applicable law to settle the policies to which losses or claim expenses are allocated, to exhaust, settle, release, commute, buy-back or otherwise resolve disputes with respect to any of its insurance policies and programs and to amend, modify or waive any rights under any such insurance policies and programs, notwithstanding whether any such policies or programs apply to any SpinCo Liabilities and/or claims SpinCo has made or could make in the future, and no member of the SpinCo Group shall allocate losses or claims or loss adjusting expenses to, or erode, exhaust, settle, release, commute, buy-back or otherwise resolve disputes with ParentKAR’s insurers with respect to any of ParentKAR’s insurance policies and programs, or amend, modify or waive any rights under any such insurance policies and programs. SpinCo shall cooperate with Parent KAR and share such information as is reasonably necessary in order to permit Parent KAR to manage and conduct its insurance matters as Parent it deems appropriate. Each Party and KAR shall share such information with SpinCo as is reasonable necessary to enable SpinCo so to cooperate with KAR. Except as otherwise expressly provided in this Agreement, neither KAR nor any member of its applicable the members of the KAR Group has the sole right shall have any obligation to settle or otherwise resolve Third-Party Claims made against it secure extended reporting for any claims under any liability policies of KAR or any member of its applicable the KAR Group covered under an applicable insurance policy. Notwithstanding anything in the foregoing to the contrary, Parent shall have the sole right to settle for any acts or otherwise resolve Third-Party Claims covered under a Designated Policy without the prior written consent of SpinCo unless such settlement (i) involves any admission, finding or determination of wrongdoing or violation of Law omissions by any member of the SpinCo Group or (ii) does not provide for a full, unconditional and irrevocable release of incurred prior to the applicable member(s) of the SpinCo Group from all Liability in connection with the Third-Party Claim, in which case Parent shall not settle or otherwise resolve such Third-Party Claims without the prior written consent of SpinCo (which consent may not be unreasonably withheld, delayed or conditioned)Effective Time.
(f) This Agreement shall not be considered as an attempted assignment of any policy of insurance or as a contract of insurance and shall not be construed to waive any right or remedy of any member of the Parent KAR Group in respect of any insurance policy or any other contract or policy of insurance.
(g) SpinCo does hereby, for itself and each other member of the SpinCo Group, agree that no member of the Parent KAR Group shall have any Liability whatsoever as a result of the insurance policies and practices of Parent KAR and the members of the Parent KAR Group as in effect at any time, including as a result of the level or scope of any such insurance, the creditworthiness of any insurance carrier, the terms and conditions of any policy, or the adequacy or timeliness of any notice to any insurance carrier with respect to any claim or potential claim or otherwise.
Appears in 4 contracts
Samples: Separation and Distribution Agreement (IAA, Inc.), Separation and Distribution Agreement (KAR Auction Services, Inc.), Separation and Distribution Agreement (IAA Spinco Inc.)
Insurance Matters. (a) Parent and SpinCo agree to cooperate in good faith to provide for an orderly transition of insurance coverage from the date hereof through the Effective Time. In no event shall Parent, any other member of the Parent Group or any Parent Indemnitee have Liability or obligation whatsoever to any member of the SpinCo Group in the event that any (i) insurance policy or insurance policy related contract shall be terminated or otherwise cease to be in effect for any reason, shall be unavailable or inadequate to cover any Liability of any member of the SpinCo Group for any reason whatsoever or shall be cancelled, not renewed or not extended beyond the current expiration date or (ii) any insurer declines, denies, delays or obstructs any claim payment.
(b) From With the sole exception of incidents occurring prior to the Effective Time and which would be otherwise covered under the automobile liability, property, transit, general and products liability, employers’ liability, workers compensation or umbrella insurance policies of Parent or any member of the Parent Group or any other insurance policy as set forth on Schedule 5.1(b) (collectively, the “Covered Policies”) from and after the Effective Time, SpinCo, any member of the SpinCo Group or any of their respective employees (including former or inactive employees) shall cease to be insured by, shall have no access or availability to or under, shall not be entitled to make claims on or under and shall not be entitled to claim benefits from or seek coverage under, and shall not have any rights to or under, any of Parent’s or any member of the Parent Group’s insurance policies or any of their respective self-insured programs in place immediately prior to the Effective Time. With Solely with respect to the Covered Policies, from and after the Effective Time, with respect to any losses, damages and Liability incurred by any member of the SpinCo Group prior to the Effective Time, Parent will provide SpinCo with access to, and SpinCo may make claims on or under under, the Covered Policies in place immediately prior to the Effective Time, but solely to the extent that such policies provided coverage for members of the SpinCo Group or the SpinCo Business prior to the Effective Time; provided that such access to, and the right to make claims under, such insurance policies, shall be subject to the terms, conditions and exclusions of such insurance policies, including any limits on Schedule 5.1(b) (collectivelycoverage or scope, any deductibles, self-insured retentions and other fees and expenses, and shall be subject to the “Designated Policies”) SpinCofollowing additional conditions:
(i) SpinCo shall notify Parent’s Director of Risk Management (or such other Person of Parent if there is no Director of Risk Management), as promptly as practicable, of any incident, circumstance or occurrence that may lead to a claim made by Parent or any member of the Parent Group under a Designated PolicySpinCo pursuant to this Section 5.1(b);
(ii) shall, and SpinCo shall cause the other members of the SpinCo Group to, at SpinCo’s sole cost and expense, cooperate with and assist reimburse Parent and the members of the Parent Group and share such information as is necessary in order to permit Parent and the members of the Parent Group to manage and conduct the insurance matters contemplated by this Section 5.1, including with respect to any claims for all claim-related payments made by Parent or any member of the Parent Group on or after the Effective Time that arise from claims made by SpinCo, any member of the SpinCo Group, any of their respective employees or any Third Party under Parent’s or any Designated Policymember of the Parent Group’s self-insured, large deductible, or fronted insurance programs for occurrences prior to the Effective Time, including overhead, claim handling and administrative costs, taxes, surcharges, state assessments and other related costs. SpinCo and the members of the SpinCo Group shall indemnify, hold harmless and reimburse Parent and the members of the Parent Group for any deductibles, self-insured retention, fees, indemnity payments, settlements, judgments, legal fees, allocated claims expenses and claim handling fees, and other expenses incurred by Parent or any members of the Parent Group to the extent resulting from any access to, or any claims made by SpinCo or any other members of the SpinCo Group under, any of Parent’s or a member of the Parent Group’s insurance policies provided pursuant to this Section 5.1(b), whether such claims are made by SpinCo, its employees or Third Parties; and
(iii) SpinCo shall exclusively bear (and neither Parent nor any members of the Parent Group shall have any obligation to repay or reimburse SpinCo or any member of the SpinCo Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts (including where any insurer declines, denies, delays or obstructs any claim payment) of all such claims made with respect to any losses, damages and Liability incurred by for the benefit of SpinCo or any member of the SpinCo Group under the policies as provided for in this Section 5.1(b). Where a policy includes a reinstatement of limits, in the event an insurance policy aggregate is exhausted, or believed likely to be exhausted, due to noticed claims, the SpinCo Group, on the one hand, and the Parent Group, on the other hand, shall be responsible for their pro rata portion of the reinstatement premium, if any, based upon the losses of such Group submitted to Parent’s insurance carrier(s) (including any submissions prior to the Effective Time). To the extent that the Parent Group or the SpinCo Group is allocated more than its pro rata portion of such premium due to the timing of losses submitted to Parent’s insurance carrier(s), the other party shall promptly pay the first party an amount so that each Group has been properly allocated its pro rata portion of the reinstatement premium. Subject to the following sentence, a Party may elect not to reinstate the policy aggregate even if available. In the event that a Party elects not to reinstate the policy aggregate, it shall provide prompt written notice to the other Party and shall have no rights to claim against or have any benefit from the reinstated limits. A Party which elects to reinstate the policy aggregate shall be responsible for all reinstatement premiums and other costs associated with such reinstatement to the extent such Party has received notice from the other Party that such other Party does not elect to reinstate the limits. In the event that any member of the Parent Group incurs any losses, damages or Liability prior to or in respect of the period prior to the Effective Time for which such member of the Parent Group is entitled to coverage under SpinCo’s third-party insurance policies, the Designated Policiessame process pursuant to this Section 5.1(b) shall apply, substituting “Parent” for “SpinCo” and “SpinCo” for “Parent”, including for purposes of the first sentence of Section 5.1(e).
(c) At the Effective Time, SpinCo shall have in effect all insurance programs required to comply with SpinCo’s contractual obligations and such other Policies required by Law or as reasonably necessary or appropriate for companies operating a business similar to SpinCo’s.
(d) Neither SpinCo nor any member of the SpinCo Group, in connection with any making a claim under any insurance policy of Parent or any member of the Parent Group (including the Designated Policies)pursuant to this Section 5.1, shall take any action that would be reasonably likely to (i) have a materially material and adverse impact on the then-current relationship between Parent or any member of the Parent Group, on the one hand, and the applicable insurance company, on the other hand; (ii) result in the applicable insurance company terminating or materially reducing coverage, or materially increasing the amount of any premium owed by Parent or any member of the Parent Group under the applicable insurance policy; or (iii) otherwise compromise, jeopardize or interfere in any material respect with the rights of Parent or any member of the Parent Group under the applicable insurance policy; provided that SpinCo’s, any member of the SpinCo Group’s, any of their respective employees’ or any Third Party’s making of a claim pursuant to Section 5.1(b)(ii) shall not be deemed to be an action that triggers the foregoing clauses (i), (ii) or (iii).
(e) Any payments, costs, adjustments or reimbursements to be paid by SpinCo pursuant to this Section 5.1 shall be billed quarterly and payable within thirty (30) days from receipt of an invoice from Parent. Parent shall retain the exclusive right to control its insurance policies and programs, including the right to exhaust, settle, release, commute, buy-back buyback or otherwise resolve disputes with respect to any of its insurance policies and programs and to amend, modify or waive any rights under any such insurance policies and programs, notwithstanding whether any such policies or programs apply to any SpinCo Liabilities and/or claims SpinCo has made or could make in the future, and no member of the SpinCo Group shall erode, exhaust, settle, release, commute, buy-back buyback or otherwise resolve disputes with Parent’s insurers with respect to any of Parent’s insurance policies and programs, or amend, modify or waive any rights under any such insurance policies and programs. SpinCo shall cooperate with Parent and share such information as is reasonably necessary in order to permit Parent to manage and conduct its insurance matters as Parent deems appropriate. Each Party and any member of its applicable Group has the sole right to settle or otherwise resolve Thirdthird-Party Claims party claims made against it or any member of its applicable Group covered under an applicable insurance policy. Notwithstanding anything in the foregoing to the contrary, Parent shall have the sole right to settle or otherwise resolve Third-Party Claims covered under a Designated Policy without the prior written consent of SpinCo unless such settlement (i) involves any admission, finding or determination of wrongdoing or violation of Law by any member of the SpinCo Group or (ii) does not provide for a full, unconditional and irrevocable release of the applicable member(s) of the SpinCo Group from all Liability in connection with the Third-Party Claim, in which case Parent shall not settle or otherwise resolve such Third-Party Claims without the prior written consent of SpinCo (which consent may not be unreasonably withheld, delayed or conditioned).
(f) This Agreement shall not be considered as an attempted assignment of any policy of insurance or as a contract of insurance and shall not be construed to waive any right or remedy of any member of the Parent Group in respect of any insurance policy or any other contract or policy of insurance.
(g) SpinCo does hereby, for itself and each other member of the SpinCo Group, agree that no member of the Parent Group shall have any Liability whatsoever as a result of the insurance policies and practices of Parent and the members of the Parent Group as in effect at any time, including as a result of the level or scope of any such insurance, the creditworthiness of any insurance carrier, the terms and conditions of any policy, or the adequacy or timeliness of any notice to any insurance carrier with respect to any claim or potential claim or otherwise.
Appears in 3 contracts
Samples: Separation and Distribution Agreement (Embecta Corp.), Separation and Distribution Agreement (Becton Dickinson & Co), Separation and Distribution Agreement (Embecta Corp.)
Insurance Matters. (a) Parent and SpinCo agree to cooperate in good faith to provide for an orderly transition of insurance coverage from the date hereof through the Effective Time. In no event shall Parent, any other member of the Parent Group or any Parent Indemnitee have Liability or obligation whatsoever to any member of the SpinCo Group in the event that any (i) insurance policy or insurance policy related contract shall be terminated or otherwise cease to be in effect for any reason, shall be unavailable or inadequate to cover any Liability of any member of the SpinCo Group for any reason whatsoever or shall be cancelled, not renewed or not extended beyond the current expiration date or (ii) any insurer declines, denies, delays or obstructs any claim payment.
(b) From Except with respect to the policies provided on Schedule 5.1(b) (collectively, the “Covered Policies”), from and after the Effective Time, SpinCo, any member of the SpinCo Group or any of their respective employees (including former or inactive employees) shall cease to be insured by, shall have no access or availability to or under, shall not be entitled to make claims on or under and shall not be entitled to claim benefits from or seek coverage under, and shall not have any rights to or under, any of Parent’s or any member of the Parent Group’s insurance policies or any of their respective self-insured programs in place immediately prior to the Effective Time. With Solely with respect to the Covered Policies, from and after the Effective Time, with respect to any losses, damages and Liability incurred by any member of the SpinCo Group prior to the Effective Time, Parent will provide SpinCo with access to, and SpinCo may make claims on or under under, the Covered Policies in place immediately prior to the Effective Time, but solely to the extent that such policies provided coverage for members of the SpinCo Group or the SpinCo Business prior to the Effective Time; provided that such access to, and the right to make claims under, such insurance policies, shall be subject to the terms, conditions and exclusions of such insurance policies, including any limits on Schedule 5.1(b) (collectivelycoverage or scope, any deductibles, self-insured retentions and other fees and expenses, and shall be subject to the “Designated Policies”) SpinCofollowing additional conditions:
(i) SpinCo shall notify Parent, as promptly as practicable, of any incident, circumstance or occurrence that may lead to a claim made by SpinCo pursuant to this Section 5.1(b);
(ii) SpinCo shall reimburse Parent and the members of the Parent Group for all claim-related payments made by Parent or any member of the Parent Group on or after the Effective Time that arise from claims made by SpinCo, any member of the SpinCo Group, any of their respective employees or any Third Party under Parent’s or any member of the Parent Group’s self-insured, large deductible, or fronted insurance programs for occurrences prior to the Effective Time, including reasonable overhead, claim handling and administrative costs, taxes, surcharges, state assessments and other related costs. SpinCo and the members of the SpinCo Group shall indemnify, hold harmless and reimburse Parent and the members of the Parent Group for any deductibles, self-insured retention, retrospective premium payments, fees, indemnity payments, settlements, judgments, legal fees, allocated claims expenses and claim handling fees and other expenses incurred by Parent or any member of the Parent Group to the extent resulting from any access to, or any claims made by SpinCo or any other members of the SpinCo Group under, any of Parent’s or a Designated Policymember of the Parent Group’s insurance policies provided pursuant to this Section 5.1(b), whether such claims are made by SpinCo, its employees or Third Parties;
(iiiii) SpinCo shall, and shall cause the other members of the SpinCo Group to, at SpinCo’s sole cost and expense, cooperate with and assist Parent and the members of the Parent Group and share such information Information as is reasonably necessary in order to permit Parent and the members of the Parent Group to manage and conduct the insurance matters contemplated by this Section 5.1, including with respect to any claims by Parent or any member of the Parent Group under any Designated Policy; and
(iiiiv) SpinCo shall exclusively bear (and neither Parent nor any members of the Parent Group shall have any obligation to repay or reimburse SpinCo or any member of the SpinCo Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts (including where any insurer declines, denies, delays or obstructs any claim payment) of all such claims made with respect to any losses, damages and Liability incurred by for the benefit of SpinCo or any member of the SpinCo Group under the policies as provided for in this Section 5.1(b). Where a policy includes a reinstatement of limits, in the event an insurance policy aggregate is exhausted, or believed likely to be exhausted, due to noticed claims, the SpinCo Group, on the one hand, and the Parent Group, on the other hand, shall be responsible for their pro rata portion of the reinstatement premium, if any, based upon the losses of such Group submitted to Parent’s insurance carrier(s) (including any submissions prior to the Effective Time). To the extent that the Parent Group or the SpinCo Group is allocated more than its pro rata portion of such premium due to the timing of losses submitted to Parent’s insurance carrier(s), the other party shall promptly pay the first party an amount so that each Group has been properly allocated its pro rata portion of the reinstatement premium. Subject to the following sentence, a Party may elect not to reinstate the policy aggregate even if available. In the event that a Party elects not to reinstate the policy aggregate, it shall provide prompt written notice to the other Party and shall have no rights to claim against or have any benefit from the reinstated limits. A Party which elects to reinstate the policy aggregate shall be responsible for all reinstatement premiums and other costs associated with such reinstatement to the extent such Party has received notice from the other Party that such other Party does not elect to reinstate the limits. In the event that any member of the Parent Group incurs any losses, damages or Liability prior to or in respect of the period prior to the Effective Time for which such member of the Parent Group is entitled to coverage under SpinCo’s third-party insurance policies, the Designated Policiessame process pursuant to this Section 5.1(b) shall apply, substituting “Parent” for “SpinCo” and “SpinCo” for “Parent,” including for purposes of the first sentence of Section 5.1(e).
(c) At the Effective Time, SpinCo shall have in effect all insurance programs required to comply with SpinCo’s contractual obligations and such other Policies required by Law or as reasonably necessary or appropriate for companies operating a business similar to SpinCo’s.
(d) Neither SpinCo nor any member of the SpinCo Group, in connection with any making a claim under any insurance policy of Parent or any member of the Parent Group (including the Designated Policies)pursuant to this Section 5.1, shall take any action that would be reasonably likely to (i) have a materially adverse impact on the then-current relationship between Parent or any member of the Parent Group, on the one hand, and the applicable insurance company, on the other hand; (ii) result in the applicable insurance company terminating or materially reducing coverage, or materially increasing the amount of any premium owed by Parent or any member of the Parent Group under the applicable insurance policy; or (iii) otherwise compromise, jeopardize or interfere in any material respect with the rights of Parent or any member of the Parent Group under the applicable insurance policy; provided that SpinCo’s, any member of the SpinCo Group’s, any of their respective employees’ or any Third Party’s making of a claim pursuant to Section 5.1(b)(ii) shall not be deemed to be an action that triggers the foregoing clauses (i), (ii) or (iii).
(e) Any payments, costs, adjustments or reimbursements to be paid by SpinCo pursuant to this Section 5.1 shall be billed quarterly and payable within thirty (30) days from receipt of an invoice from Parent. Parent shall retain the exclusive right to control its insurance policies and programs, including the right to exhaust, settle, release, commute, buy-back or otherwise resolve disputes with respect to any of its insurance policies and programs and to amend, modify or waive any rights under any such insurance policies and programs, notwithstanding whether any such policies or programs apply to any SpinCo Liabilities and/or claims SpinCo has made or could make in the future, and no member of the SpinCo Group shall erode, exhaust, settle, release, commute, buy-back or otherwise resolve disputes with ParentPxxxxx’s insurers with respect to any of Parent’s insurance policies and programs, or amend, modify or waive any rights under any such insurance policies and programs. SpinCo shall cooperate with Parent and share such information as is reasonably necessary in order to permit Parent to manage and conduct its insurance matters as Parent deems appropriate. Each Party and any member of its applicable Group has the sole right to settle or otherwise resolve Thirdthird-Party Claims party claims made against it or any member of its applicable Group covered under an applicable insurance policy. Notwithstanding anything in the foregoing to the contrary, Parent shall have the sole right to settle or otherwise resolve Third-Party Claims covered under a Designated Policy without the prior written consent of SpinCo unless such settlement (i) involves any admission, finding or determination of wrongdoing or violation of Law by any member of the SpinCo Group or (ii) does not provide for a full, unconditional and irrevocable release of the applicable member(s) of the SpinCo Group from all Liability in connection with the Third-Party Claim, in which case Parent shall not settle or otherwise resolve such Third-Party Claims without the prior written consent of SpinCo (which consent may not be unreasonably withheld, delayed or conditioned).
(f) This Agreement shall not be considered as an attempted assignment of any policy of insurance or as a contract of insurance and shall not be construed to waive any right or remedy of any member of the Parent Group in respect of any insurance policy or any other contract or policy of insurance.
(g) SpinCo does hereby, for itself and each other member of the SpinCo Group, agree that no member of the Parent Group shall have any Liability whatsoever as a result of the insurance policies and practices of Parent and the members of the Parent Group as in effect at any time, including as a result of the level or scope of any such insurance, the creditworthiness of any insurance carrier, the terms and conditions of any policy, or the adequacy or timeliness of any notice to any insurance carrier with respect to any claim or potential claim or otherwise.
Appears in 3 contracts
Samples: Separation and Distribution Agreement (Knife River Holding Co), Separation and Distribution Agreement (Mdu Resources Group Inc), Separation and Distribution Agreement (Knife River Holding Co)
Insurance Matters. (a) Parent and SpinCo Varex agree to cooperate in good faith to provide for an orderly transition of insurance coverage from the date hereof through the Effective Time. In no event shall Parent, any other member of the Parent Group or any Parent Indemnitee have Liability or obligation whatsoever to any member of the SpinCo Varex Group in the event that any (i) insurance policy or insurance policy related contract shall be terminated or otherwise cease to be in effect for any reason, shall be unavailable or inadequate to cover any Liability of any member of the SpinCo Varex Group for any reason whatsoever or shall not be cancelled, not renewed or not extended beyond the current expiration date or (ii) any insurer declines, denies, delays or obstructs any claim paymentdate.
(b) From and after the Effective Time, SpinCowith respect to any losses, damages and Liability incurred by any member of the SpinCo Varex Group or any of their respective employees (including former or inactive employees) shall cease to be insured by, shall have no access or availability to or under, shall not be entitled to make claims on or under and shall not be entitled to claim benefits from or seek coverage under, and shall not have any rights to or under, any of Parent’s or any member of the Parent Group’s insurance policies or any of their respective self-insured programs in place prior to the Effective Time. With respect , Parent will pursue claims, at Varex’s sole cost and expense on behalf of Varex under (with Varex entitled to all Insurance Proceeds resulting from or arising out of any such claims) Parent’s Policies in place immediately prior to the Effective Time (and any extended reporting periods for claims made Policies) and Parent’s historical Policies, but solely to the extent that such Policies provided coverage for members of the Varex Group or the Varex Business prior to the Effective Time; provided that such right to require Parent to make claims on behalf of Varex under such Policies, shall be subject to the terms, conditions and exclusions of such Policies, including but not limited to any limits on coverage or under scope, any deductibles, self-insured retentions and other fees and expenses, and shall be subject to the policies provided on Schedule 5.1(b) (collectively, the “Designated Policies”) SpinCofollowing additional conditions:
(i) Varex shall notify Parent, as promptly as practicable, provide written notification to Parent of any incident, circumstance or occurrence that may lead request for Parent to pursue a claim made by Parent or any member of the Parent Group under a Designated Policy;
(ii) shallon behalf Varex pursuant to this Section 5.1(b), and Parent shall cause the other members of the SpinCo Group touse commercially reasonable efforts to pursue such claim, at SpinCothe Varex’s sole cost and expense, cooperate with as promptly as is reasonably practicable;
(ii) Varex and assist the members of the Varex Group shall indemnify, hold harmless and reimburse Parent and the members of the Parent Group for any deductibles, self-insured retention, fees, indemnity payments, settlements, judgments, legal fees, allocated claims expenses and share such information as is necessary in order to permit claim handling fees, and other expenses incurred by Parent and the or any members of the Parent Group to manage and conduct the insurance matters contemplated by this Section 5.1, including with respect to extent resulting from any pursuit of claims by Parent on behalf of Varex or any member other members of the Parent Varex Group under any Designated Policyinsurance provided pursuant to this Section 5.1(b), whether such claims are pursued on behalf of Varex, its employees or third Persons; and
(iii) Varex shall exclusively bear (and neither Parent nor any members of the Parent Group shall have any obligation to repay or reimburse SpinCo Varex or any member of the SpinCo Varex Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts (including where any insurer declines, denies, delays or obstructs any claim payment) of all such claims made with respect to pursued on behalf of Varex or any member of the Varex Group under the Policies as provided for in this Section 5.1(b). In the event that any member of the Parent Group incurs any losses, damages and or Liability incurred by any member prior to or in respect of the SpinCo Group period prior to the Effective Time for which such member of the Parent Group is entitled to coverage under Varex’s third-party Policies, the Designated Policiessame process pursuant to this Section 5.1(b) shall apply, substituting “Parent” for “Varex” and “Varex” for “Parent”, including for purposes of the first sentence of Section 5.1(e).
(c) Except as provided in Section 5.1(b), from and after the Effective Time, neither Varex nor any member of the Varex Group shall have any rights to or under any of the Policies of Parent or any other member of the Parent Group. At the Effective Time, SpinCo Varex shall have in effect all insurance programs required to comply with SpinCoVarex’s contractual obligations and such other Policies required by Law or as reasonably necessary or appropriate for companies operating a business similar to SpinCoVarex’s.
(d) Neither SpinCo nor any In connection with Parent’s pursuit of a claim on behalf of Varex or a member of the SpinCo Group, in connection with any claim Varex Group under any insurance policy of Parent or any member of the Parent Group (including the Designated Policies)pursuant to this Section 5.1, Parent shall not be required to take any action that would be reasonably likely to (i) have a materially material and adverse impact on the then-current relationship between Parent or any member of the Parent Group, on the one hand, and the applicable insurance company, on the other hand; (ii) result in the applicable insurance company terminating or materially reducing coverage, or materially increasing the amount of any premium owed by Parent or any member of the Parent Group under the applicable insurance policy; or (iii) otherwise compromise, jeopardize or interfere in any material respect with the rights of Parent or any member of the Parent Group under the applicable insurance policy.
(e) All payments and reimbursements by Varex pursuant to this Section 5.1 will be made within forty-five (45) days after Varex’s receipt of an invoice therefor from Parent. Parent shall retain the exclusive right to control its insurance policies Policies and programs, including the right to exhaust, settle, release, commute, buy-back or otherwise resolve disputes with respect to any of its insurance policies Policies and programs and to amend, modify or waive any rights under any such insurance policies Policies and programs, notwithstanding whether any such Policies or programs apply to any Varex Liabilities and/or claims Varex has made or could make in the future, and no member of the SpinCo Varex Group shall erode, exhaust, settle, release, commute, buy-back buyback or otherwise resolve disputes with Parent’s insurers with respect to any of Parent’s insurance policies Policies and programs, or amend, modify or waive any rights under any such insurance policies Policies and programs. SpinCo Varex shall cooperate with Parent and share such information as is reasonably necessary in order to permit Parent to manage and conduct its insurance matters as Parent deems appropriate. Each Neither Parent nor any member of the Parent Group shall have any obligation to secure extended reporting for any claims under any Policies of Parent or any member of the Parent Group for any acts or omissions by any member of the Varex Group incurred prior to the Effective Time. For the avoidance of doubt, each Party and any member of its applicable Group has the sole right to settle or otherwise resolve Third-Party Claims third party claims made against it or any member of its applicable Group covered under an applicable insurance policy. Notwithstanding anything in the foregoing to the contrary, Parent shall have the sole right to settle or otherwise resolve Third-Party Claims covered under a Designated Policy without the prior written consent of SpinCo unless such settlement (i) involves any admission, finding or determination of wrongdoing or violation of Law by any member of the SpinCo Group or (ii) does not provide for a full, unconditional and irrevocable release of the applicable member(s) of the SpinCo Group from all Liability in connection with the Third-Party Claim, in which case Parent shall not settle or otherwise resolve such Third-Party Claims without the prior written consent of SpinCo (which consent may not be unreasonably withheld, delayed or conditioned)Policy.
(f) This Agreement shall not be considered as an attempted assignment of any policy of insurance or as a contract of insurance and shall not be construed to waive any right or remedy of any member of the Parent Group in respect of any insurance policy or any other contract or policy of insurance.
(g) SpinCo Varex does hereby, for itself and each other member of the SpinCo Varex Group, agree that no member of the Parent Group shall have any Liability whatsoever as a result of the insurance policies Policies and practices of Parent and the members of the Parent Group as in effect at any time, including as a result of the level or scope of any such insurance, the creditworthiness of any insurance carrier, the terms and conditions of any policy, or the adequacy or timeliness of any notice to any insurance carrier with respect to any claim or potential claim or otherwise.
(h) For six (6) years after the Effective Time, each of Parent and Varex shall cause to be maintained in effect the same or no less favorable (in the aggregate) provisions in its respective certificate of incorporation and bylaws in effect as of the Effective Time regarding elimination of liability, indemnification of officers and directors and advancement of expenses; provided that this clause (h) shall not be deemed to prevent any merger, liquidation or similar transaction.
Appears in 3 contracts
Samples: Separation and Distribution Agreement (Varex Imaging Corp), Separation and Distribution Agreement (Varian Medical Systems Inc), Separation and Distribution Agreement (Varex Imaging Corp)
Insurance Matters. (a) Parent and SpinCo agree to cooperate in good faith to provide for an orderly transition of insurance coverage from the date hereof through the Effective Time. In no event shall Parent, any other member of the Parent Group or any Parent Indemnitee have Liability or obligation whatsoever to any member of the SpinCo Group in the event that any (i) insurance policy or insurance policy related contract shall be terminated or otherwise cease to be in effect for any reason, shall be unavailable or inadequate to cover any Liability of any member of the SpinCo Group for any reason whatsoever or shall not be cancelled, not renewed or not extended beyond the current expiration date or (ii) any insurer declines, denies, delays or obstructs any claim paymentdate.
(b) From and after the Effective Time, SpinCowith respect to any losses, damages and Liability incurred by any member of the SpinCo Group or any of their respective employees prior to the Effective Time (including former or inactive employees) shall cease to be insured bythe “Prior Period”), shall have no Parent will provide SpinCo with access or availability to or to, and SpinCo may make claims under, shall not be entitled to make claims on or under and shall not be entitled to claim benefits from or seek coverage under, and shall not have any rights to or under, any of Parent’s or any member of the Parent Group’s insurance policies or any in place immediately prior to the Effective Time and Parent’s historical policies of their respective insurance and/or programs of self-insured programs in place insurance, but solely to the extent that such policies provided coverage for members of the SpinCo Group prior to the Effective Time. With respect ; provided that such access to, and the right to make claims under, such insurance policies and/or programs of self-insurance, shall be subject to the terms, conditions and exclusions of such insurance policies and/or programs of self-insurance, including but not limited to any limits on coverage or under scope, any deductibles, self-insured retentions and other fees and expenses, and shall be subject to the policies provided on Schedule 5.1(b) (collectively, the “Designated Policies”) SpinCofollowing additional conditions:
(i) Parent shall notify provide a list of any claim or potential claim for the Prior Period subject to 5.1(b) above (“Prior Period Claim”) to an administrator for SpinCo’s Prior Period Claims under Parent’s insurance policies and/or programs of self-insurance. Parent may update the list of Prior Period Claims from time to time and SpinCo shall report any Prior Period Claim to Parent, as promptly as practicable, of and in any incident, circumstance or occurrence event in sufficient time so that such Prior Period Claim may lead to a claim be made by Parent or any member in accordance with the Prior Period Claim reporting requirements of the Parent Group under a Designated Policyapplicable insurance policy;
(ii) shall, SpinCo and shall cause the other members of the SpinCo Group toshall indemnify, at SpinCo’s sole cost hold harmless and expense, cooperate with and assist reimburse Parent and the members of the Parent Group for any deductibles, self-insured retention, administration, collateral and share such information as is necessary in order to permit other fees, indemnity payments, settlements, judgments, legal fees, allocated claims expenses and claim handling fees and other expenses incurred by Parent and the or any members of the Parent Group to manage and conduct the extent resulting from any access to, or any Prior Period Claims made by SpinCo or any other members of the SpinCo Group under, any insurance matters contemplated by provided pursuant to this Section 5.15.1(b), including with respect to any claims whether such Prior Period Claims are made by Parent SpinCo, its employees or any member of the Parent Group under any Designated Policythird Persons; and
(iii) SpinCo shall exclusively bear (and neither Parent nor any members of the Parent Group shall have any obligation to repay or reimburse SpinCo or any member of the SpinCo Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts (including where any insurer declines, denies, delays or obstructs any claim payment) of all such claims made with respect to any losses, damages and Liability incurred by SpinCo or any member of the SpinCo Group under the policies as provided for in this Section 5.1(b). In the event an insurance policy aggregate is exhausted, or believed likely to be exhausted, due to noticed claims, the SpinCo Group, on the one hand, and the Parent Group, on the other hand, shall be responsible for their pro rata portion of the reinstatement premium, if any, based upon the losses of such Group submitted to Parent’s insurance carrier(s) (including any submissions prior to the Effective Time). To the extent that the Parent Group or the SpinCo Group is allocated more than its pro rata portion of such premium due to the timing of losses submitted to Parent’s insurance carrier(s), the other Party shall promptly pay the first Party an amount so that each Group has been properly allocated its pro rata portion of the reinstatement premium. Subject to the following sentence, Parent may elect not to reinstate the policy aggregate. In the event that Parent elects not to reinstate the policy aggregate, it shall provide prompt written notice to SpinCo, and SpinCo may direct Parent in writing to, and Parent shall, in such case, reinstate the policy aggregate; provided that SpinCo shall be responsible for all reinstatement premiums and other costs associated with such reinstatement. In the event that any member of the Parent Group incurs any losses, damages or Liability prior to or in respect of the period prior to the Effective Time for which such member of the Parent Group is entitled to coverage under SpinCo’s third-party insurance policies, the Designated Policiessame process pursuant to this Section 5.1(b) shall apply, substituting “Parent” for “SpinCo” and “SpinCo” for “Parent.”
(c) Except as provided in Section 5.1(b), from and after the Effective Time, neither SpinCo nor any member of the SpinCo Group shall have any rights to or under any of the insurance policies of Parent or any other member of the Parent Group. At the Effective Time, SpinCo shall have in effect all insurance programs required to comply with SpinCo’s contractual obligations and such other Policies insurance policies required by Law or as reasonably necessary or appropriate for companies operating a business similar to SpinCo’s.
(d) Neither SpinCo nor any member of the SpinCo Group, in connection with any claim making a Prior Period Claim under any insurance policy of Parent or any member of the Parent Group (including the Designated Policies)pursuant to this Section 5.1, shall take any action that would be reasonably likely to (i) have a materially material and adverse impact on the then-current relationship between Parent or any member of the Parent Group, on the one hand, and the applicable insurance company, on the other hand; (ii) result in the applicable insurance company terminating or materially reducing coverage, or materially increasing the amount of any premium owed by Parent or any member of the Parent Group under the applicable insurance policy; or (iii) otherwise compromise, jeopardize or interfere in any material respect with the rights of Parent or any member of the Parent Group under the applicable insurance policy.
(e) All payments and reimbursements by SpinCo pursuant to this Section 5.1 will be made within fifteen (15) days after SpinCo’s receipt of an invoice therefor from Parent. If Parent incurs costs to enforce SpinCo’s obligations herein, SpinCo agrees to indemnify and hold harmless Parent for such enforcement costs, including reasonable attorneys’ fees pursuant to Section 4.6(b). Parent shall retain the exclusive right to control its insurance policies and programs, including the right to exhaust, settle, release, commute, buy-back or otherwise resolve disputes with respect to any of its insurance policies and programs and to amend, modify or waive any rights under any such insurance policies and programs, notwithstanding whether any such policies or programs apply to any SpinCo Liabilities and/or Prior Period Claims SpinCo has made or could make in the future, and no member of the SpinCo Group shall erode, exhaust, settle, release, commute, buy-back buyback or otherwise resolve disputes with Parent’s insurers with respect to any of Parent’s insurance policies and programs, or amend, modify or waive any rights under any such insurance policies and programs. SpinCo shall cooperate with Parent and share such information as is reasonably necessary in order to permit Parent to manage and conduct both its approved self-insurance and insurance matters as Parent deems appropriate. Each Party and Neither Parent nor any member of its applicable the members of the Parent Group has the sole right shall have any obligation to settle or otherwise resolve Third-Party Claims made against it secure extended reporting for any claims under any Liability policies of Parent or any member of its applicable the Parent Group covered under an applicable insurance policy. Notwithstanding anything in the foregoing to the contrary, Parent shall have the sole right to settle for any acts or otherwise resolve Third-Party Claims covered under a Designated Policy without the prior written consent of SpinCo unless such settlement (i) involves any admission, finding or determination of wrongdoing or violation of Law omissions by any member of the SpinCo Group or (ii) does not provide for a full, unconditional and irrevocable release of incurred prior to the applicable member(s) of the SpinCo Group from all Liability in connection with the Third-Party Claim, in which case Parent shall not settle or otherwise resolve such Third-Party Claims without the prior written consent of SpinCo (which consent may not be unreasonably withheld, delayed or conditioned)Effective Time.
(f) This Agreement shall not be considered as an attempted assignment of any policy of insurance or as a contract of insurance and shall not be construed to waive any right or remedy of any member of the Parent Group in respect of any insurance policy or any other contract or policy of insurance.
(g) SpinCo does hereby, for itself and each other member of the SpinCo Group, agree that no member of the Parent Group shall have any Liability whatsoever as a result of the insurance policies and practices of Parent and the members of the Parent Group as in effect at any time, including as a result of the level or scope of any such insurance, the creditworthiness of any insurance carrier, the terms and conditions of any policy, or the adequacy or timeliness of any notice to any insurance carrier with respect to any claim or potential claim or otherwise.
Appears in 3 contracts
Samples: Separation and Distribution Agreement (Ingevity Corp), Separation and Distribution Agreement (Ingevity Corp), Separation and Distribution Agreement (Ingevity Corp)
Insurance Matters. (a) Parent YUM and the SpinCo Parties agree to cooperate in good faith to provide for an orderly transition of insurance coverage from the date hereof through the Effective Time. In no event shall ParentYUM, any other member of the Parent YUM Group or any Parent YUM Indemnitee have Liability or obligation whatsoever to any member of the SpinCo Group in the event that if any (i) insurance policy or other Contract or policy of insurance policy related contract shall be terminated or otherwise cease to be in effect for any reason, shall be unavailable or inadequate to cover any Liability of any member of the SpinCo Group for any reason whatsoever or shall not be cancelled, not renewed or not extended beyond the current expiration date or (ii) any insurer declines, denies, delays or obstructs any claim paymentdate.
(b) From and after the Effective Time, SpinCo, with respect to any Liabilities incurred by any member of the SpinCo Group or any of their respective employees (including former or inactive employees) shall cease to be insured by, shall have no access or availability to or under, shall not be entitled to make claims on or under and shall not be entitled to claim benefits from or seek coverage under, and shall not have any rights to or under, any of Parent’s or any member of the Parent Group’s insurance policies or any of their respective self-insured programs in place prior to the Effective Time. With respect , YUM will provide SpinCo with access to, and SpinCo may, upon ten (10) days’ prior written notice to YUM, make claims on or under under, YUM’s third-party insurance policies that may provide coverage for acts occurring prior to the Effective Time, if renewed, and YUM’s historical policies of insurance, but solely to the extent that such policies provided coverage for members of the SpinCo Group prior to the Effective Time; provided that such access to, and the right to make claims under, such insurance policies, shall be subject to the terms and conditions of such insurance policies, including any limits on Schedule 5.1(b) (collectivelycoverage or scope, any deductibles and other fees and expenses, and shall be subject to the “Designated Policies”) SpinCofollowing additional conditions:
(i) The SpinCo Parties shall notify Parentreport any claim to YUM, as promptly as practicable, of and in any incident, circumstance event in sufficient time so that such claim may be made in accordance with YUM’s claim reporting procedures in effect immediately prior to the Effective Time (or occurrence that may lead in accordance with any modifications to a claim made such procedures after the Effective Time communicated by Parent or any member of YUM to the Parent Group under a Designated PolicySpinCo Parties in writing);
(ii) shall, The SpinCo Parties and shall cause the other members of the SpinCo Group toshall indemnify, at SpinCo’s sole cost hold harmless and expense, cooperate with and assist Parent reimburse YUM and the other members of the Parent YUM Group for any deductibles, self-insured retention, fees and share such information as is necessary in order to permit Parent and the expenses incurred by YUM or any members of the Parent YUM Group to manage and conduct the extent resulting from any access to, or any claims made by the SpinCo Parties or any other members of the SpinCo Group under, any insurance matters contemplated by provided pursuant to this Section 5.15.1(b), including with respect to any indemnity payments, settlements, judgments, legal fees and allocated claims expenses and claim handling fees, whether such claims are made by Parent the SpinCo Parties, their employees or any member of the Parent Group under any Designated PolicyThird Parties; and
(iii) The SpinCo Parties shall exclusively bear (and neither Parent YUM nor any other members of the Parent YUM Group shall have any obligation to repay or reimburse the SpinCo Parties or any other member of the SpinCo Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts of all such claims made by the SpinCo Parties or any other member of the SpinCo Group under the policies as provided for in this Section 5.1(b). If an insurance policy aggregate is exhausted, or believed likely to be exhausted, due to noticed claims, the SpinCo Group, on the one hand, and the YUM Group, on the other hand, shall be responsible for their pro rata portion of the reinstatement premium, if any, based upon the losses of such Group submitted to YUM’s insurance carrier(s) (including where any insurer declinessubmissions prior to the Effective Time). To the extent that the YUM Group or the SpinCo Group is allocated more than its pro rata portion of such premium due to the timing of losses submitted to YUM’s insurance carrier(s), denieseach other Party shall promptly pay the first Party an amount so that each Group has been properly allocated its pro rata portion of the reinstatement premium. Subject to the following sentence, delays YUM may elect not to reinstate the policy aggregate. In the event that YUM elects not to reinstate the policy aggregate, it shall provide prompt written notice to SpinCo, and SpinCo may direct YUM in writing to, and YUM shall, in such case, reinstate the policy aggregate; provided that the SpinCo Parties shall be responsible for all reinstatement premiums and other costs associated with such reinstatement. If any member of the YUM Group incurs any Liabilities prior to or obstructs any claim payment) in respect of all claims made with respect the period prior to any losses, damages and Liability incurred by the Effective Time for which such member of the YUM Group is entitled to coverage under third-party insurance policies of any member of the SpinCo Group prior Group, the same process pursuant to this Section 5.1(b) shall apply, substituting “YUM” for “SpinCo” or “the Effective Time under SpinCo Parties,” as applicable, and “the Designated PoliciesSpinCo Parties” for “YUM.”
(c) Except as provided in Section 5.1(b), from and after the Effective Time, neither the SpinCo Parties nor any other member of the SpinCo Group shall have any rights to or under any of the insurance policies of YUM or any other member of the YUM Group. At the Effective Time, the SpinCo Parties shall have in effect all insurance programs required to comply with SpinCo’s the contractual obligations of the SpinCo Parties and the other members of the SpinCo Group and such other Policies insurance policies required by applicable Law or as reasonably necessary or appropriate for companies operating a business similar to SpinCo’sthe SpinCo Business.
(d) Neither the SpinCo Parties nor any other member of the SpinCo Group, in connection with any making a claim under any insurance policy of Parent YUM or any other member of the Parent YUM Group (including the Designated Policies)pursuant to this Section 5.1, shall take any action that would be reasonably likely to (i) have a materially an adverse impact on the then-current relationship between Parent YUM or any other member of the Parent YUM Group, on the one hand, and the applicable insurance company, on the other hand; (ii) result in the applicable insurance company terminating or materially reducing coverage, or materially increasing the amount of any premium owed by Parent YUM or any other member of the Parent YUM Group under the applicable insurance policy; or (iii) otherwise compromise, jeopardize or interfere in any material respect with the rights of Parent YUM or any other member of the Parent YUM Group under the applicable insurance policy.
(e) Parent All payments and reimbursements by the SpinCo Parties pursuant to this Section 5.1 will be made within thirty (30) days after the SpinCo Parties’ receipt of an invoice therefor from YUM. If YUM or any other member of the YUM Group incurs costs to enforce the SpinCo Parties’ obligations herein, the SpinCo Parties agrees to indemnify and hold harmless YUM and the other members of the YUM Group for such enforcement costs, including reasonable attorneys’ fees. YUM shall retain the exclusive right to control its the YUM Group’s insurance policies and programs, including the right to erode, exhaust, settle, release, commute, buy-back buyback or otherwise resolve disputes with respect to any of its insurance policies and programs and to amend, modify or waive any rights under any such insurance policies and programs, notwithstanding whether any such policies or programs apply to any SpinCo Liabilities and/or claims the SpinCo Parties or any other member of the SpinCo Group has made or could make in the future, and no member of the SpinCo Group shall erode, exhaust, settle, release, commute, buy-back buyback or otherwise resolve disputes with Parent’s insurers of any member of the YUM Group with respect to any of Parent’s their respective insurance policies and programs, or amend, modify or waive any rights under any such insurance policies and programs. The SpinCo Parties shall and shall cause the other members of the SpinCo Group to cooperate with Parent YUM and share such information as is reasonably necessary in order to permit Parent YUM to manage and conduct its the YUM Group’s insurance matters as Parent it deems appropriate. Each Party and Neither YUM nor any of the other members of the YUM Group shall have any obligation to secure extended reporting for any claims under any Liability policies of YUM or any other member of its applicable the YUM Group has the sole right to settle for any acts or otherwise resolve Third-Party Claims made against it or any member of its applicable Group covered under an applicable insurance policy. Notwithstanding anything in the foregoing to the contrary, Parent shall have the sole right to settle or otherwise resolve Third-Party Claims covered under a Designated Policy without the prior written consent of SpinCo unless such settlement (i) involves any admission, finding or determination of wrongdoing or violation of Law omissions by any member of the SpinCo Group or incurred prior to the Effective Time.
(f) YUM shall, and shall cause the other members of the YUM Group to, (i) use commercially reasonable efforts, at SpinCo’s reasonable request (and provided that the SpinCo Parties comply with the requirements of Section 5.1(b)), to assist SpinCo in making claims under the YUM Group insurance policies described in Section 5.1(b), (ii) does not provide for notify SpinCo within thirty (30) days of any election by YUM to control any claim under a fullYUM Group insurance policy or program to the extent such claim relates to a SpinCo Asset and/or SpinCo Liability, unconditional (iii) promptly (and irrevocable release of in any event within thirty (30) days after YUM’s receipt thereof) pay over to SpinCo or the applicable member(s) member of the SpinCo Group from all Liability any Insurance Proceeds that are received by YUM or any member of the YUM Group in connection with respect of such claims, and (iv) endeavor to notify SpinCo of any changes to the Third-Party Claim, in which case Parent shall not settle structure or otherwise resolve such Third-Party Claims without the prior written consent limit of SpinCo (which consent may not be unreasonably withheld, delayed or conditioned)subsequent renewals relating to directors and officers insurance programs.
(fg) This Agreement shall not be considered as an attempted assignment of any policy of insurance or as a contract Contract of insurance and shall not be construed to waive any right or remedy of any member of the Parent YUM Group in respect of any insurance policy or any other contract Contract or policy of insurance.
(gh) Each of the SpinCo Parties does hereby, for itself and each other member of the SpinCo Group, agree that no member of the Parent YUM Group shall have any Liability whatsoever as a result of the insurance policies and practices of Parent YUM and the other members of the Parent YUM Group as in effect at any time, including as a result of the level or scope of any such insurance, the creditworthiness of any insurance carrier, the terms and conditions of any policy, or the adequacy or timeliness of any notice to any insurance carrier with respect to any claim or potential claim or otherwise.
Appears in 3 contracts
Samples: Separation and Distribution Agreement (Yum Brands Inc), Separation and Distribution Agreement (Yum China Holdings, Inc.), Separation and Distribution Agreement (Yum China Holdings, Inc.)
Insurance Matters. (6)
(a) Parent In accordance with the Transition Services Agreement, until [·], to the extent permitted by applicable Law, Vornado and SpinCo agree to cooperate in good faith to provide for an orderly transition Vornado OP shall, and shall cause the relevant members of the Vornado Group to, maintain the insurance coverage from applicable to the date hereof through DC Business pursuant to the terms and conditions and coverages of the existing insurance policies of the Vornado Group in effect as of the Effective Time. In ; provided, however, that in no event shall ParentVornado, any other member of the Parent Vornado Group or any Parent Vornado Indemnitee have any Liability or obligation whatsoever to any member of the SpinCo Newco Group in the event that any (i) insurance policy or other contract or policy of insurance policy related contract shall be terminated or otherwise cease to be in effect for any reason, shall be unavailable or inadequate to cover any Liability of any member of the SpinCo Newco Group for any reason whatsoever or shall not be cancelled, not renewed or not extended with respect to the DC Business beyond the current expiration date. With respect to each insurance policy, the “Insurance Termination Date” shall be [], or such earlier date or (ii) as of which the DC Business ceases to be covered by the insurance policies of the Vornado Group in effect as of the Effective Time in accordance with this Section 5.1(a). Prior to the Insurance Termination Date, Vornado and Newco shall discuss in good faith whether to continue any insurer declinesinsurance coverages beyond the Insurance Termination Date and shall cooperate in good faith to provide for an orderly transition of insurance coverage following the Insurance Termination Date; provided, denieshowever, delays or obstructs that Vornado shall not be required to continue any claim paymentsuch insurance coverages beyond the Insurance Termination Date.
(b) From and after the Effective Time, SpinCo, any member of the SpinCo Group or any of their respective employees (including former or inactive employees) shall cease to be insured by, shall have no access or availability to or under, shall not be entitled to make claims on or under and shall not be entitled to claim benefits from or seek coverage under, and shall not have any rights to or under, any of Parent’s or any member of the Parent Group’s insurance policies or any of their respective self-insured programs in place prior to the Effective Time. With respect to claims on or under the policies provided on Schedule 5.1(b) (collectively, the “Designated Policies”) SpinCo:
(i) shall notify Parent, as promptly as practicable, of any incident, circumstance or occurrence that may lead to a claim made by Parent or any member of the Parent Group under a Designated Policy;
(ii) shall, and shall cause the other members of the SpinCo Group to, at SpinCo’s sole cost and expense, cooperate with and assist Parent and the members of the Parent Group and share such information as is necessary in order to permit Parent and the members of the Parent Group to manage and conduct the insurance matters contemplated by this Section 5.1, including with respect to any claims by Parent or any member of the Parent Group under any Designated Policy; and
(iii) shall exclusively bear (and neither Parent nor any members of the Parent Group shall have any obligation to repay or reimburse SpinCo or any member of the SpinCo Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts (including where any insurer declines, denies, delays or obstructs any claim payment) of all claims made with respect to any lossesLosses, damages and Liability incurred by any member of the SpinCo Newco Group prior to the Effective Time under Insurance Termination Date, Vornado will provide Newco with access to, and Newco may, upon ten (10) days’ prior written notice to Vornado, make claims under, Vornado’s Third Party insurance policies in place prior to the Designated Policies.
(c) At Insurance Termination Date and Vornado’s historical policies of insurance, but solely to the Effective Time, SpinCo shall have in effect all insurance programs required to comply with SpinCo’s contractual obligations and extent that such other Policies required by Law or as reasonably necessary or appropriate policies provided coverage for companies operating a business similar to SpinCo’s.
(d) Neither SpinCo nor any member members of the SpinCo Group, in connection with any claim under any insurance policy of Parent or any member of Newco Group prior to the Parent Group (including the Designated Policies), shall take any action Insurance Termination Date; provided that would be reasonably likely to (i) have a materially adverse impact on the then-current relationship between Parent or any member of the Parent Group, on the one handsuch access to, and the applicable insurance company, on the other hand; (ii) result in the applicable insurance company terminating or materially reducing coverage, or materially increasing the amount of any premium owed by Parent or any member of the Parent Group under the applicable insurance policy; or (iii) otherwise compromise, jeopardize or interfere in any material respect with the rights of Parent or any member of the Parent Group under the applicable insurance policy.
(e) Parent shall retain the exclusive right to control its insurance policies and programsmake claims under, including the right to exhaust, settle, release, commute, buy-back or otherwise resolve disputes with respect to any of its insurance policies and programs and to amend, modify or waive any rights under any such insurance policies and programs and no member of the SpinCo Group policies, shall erode, exhaust, settle, release, commute, buy-back or otherwise resolve disputes with Parent’s insurers with respect be subject to any of Parent’s insurance policies and programs, or amend, modify or waive any rights under any such insurance policies and programs. SpinCo shall cooperate with Parent and share such information as is necessary in order to permit Parent to manage and conduct its insurance matters as Parent deems appropriate. Each Party and any member of its applicable Group has the sole right to settle or otherwise resolve Third-Party Claims made against it or any member of its applicable Group covered under an applicable insurance policy. Notwithstanding anything in the foregoing to the contrary, Parent shall have the sole right to settle or otherwise resolve Third-Party Claims covered under a Designated Policy without the prior written consent of SpinCo unless such settlement (i) involves any admission, finding or determination of wrongdoing or violation of Law by any member of the SpinCo Group or (ii) does not provide for a full, unconditional and irrevocable release of the applicable member(s) of the SpinCo Group from all Liability in connection with the Third-Party Claim, in which case Parent shall not settle or otherwise resolve such Third-Party Claims without the prior written consent of SpinCo (which consent may not be unreasonably withheld, delayed or conditioned).
(f) This Agreement shall not be considered as an attempted assignment of any policy of insurance or as a contract of insurance and shall not be construed to waive any right or remedy of any member of the Parent Group in respect of any insurance policy or any other contract or policy of insurance.
(g) SpinCo does hereby, for itself and each other member of the SpinCo Group, agree that no member of the Parent Group shall have any Liability whatsoever as a result of the insurance policies and practices of Parent and the members of the Parent Group as in effect at any time, including as a result of the level or scope of any such insurance, the creditworthiness of any insurance carrier, the terms and conditions of such insurance policies, including any policylimits on coverage or scope, or any deductibles and other fees and expenses, and shall be subject to the adequacy or timeliness of any notice to any insurance carrier with respect to following additional conditions:
(i) Newco shall report any claim or potential to Vornado, as promptly as is reasonably practicable, and in any event in sufficient time so that such claim or otherwise.may be made in accordance with Vornado’s claim reporting procedures in effect immediately
Appears in 2 contracts
Samples: Master Transaction Agreement (JBG SMITH Properties), Master Transaction Agreement (Vornado Realty Lp)
Insurance Matters. (a) Parent and SpinCo agree to cooperate in good faith to provide for an orderly transition of insurance coverage from the date hereof through the Effective Time. In no event shall Parent, any other member of the Parent Group or any Parent Indemnitee have Liability or obligation whatsoever to any member of the SpinCo Group in the event that any (i) insurance policy or other contract or policy of insurance policy related contract shall be terminated or otherwise cease to be in effect for any reason, shall be unavailable or inadequate to cover any Liability of any member of the SpinCo Group for any reason whatsoever or shall not be cancelled, not renewed or not extended beyond the current expiration date or (ii) any insurer declines, denies, delays or obstructs any claim paymentdate.
(b) From Parent agrees to use its reasonable best efforts to cause the interests and after rights of SpinCo and the Effective Time, SpinCo, any member members of the SpinCo Group as of the Effective Time as insureds or beneficiaries or in any other capacity under occurrence-based insurance policies and programs (and under claims-made policies and programs to the extent a claim has been submitted prior to the Effective Time) of their respective employees (including former or inactive employees) shall cease to be insured by, shall have no access or availability to or under, shall not be entitled to make claims on or under and shall not be entitled to claim benefits from or seek coverage under, and shall not have any rights to or under, any of Parent’s Parent or any member of the Parent Group’s insurance policies or any of their respective self-insured programs in place prior to the Effective Time. With respect to claims on or under the policies provided on Schedule 5.1(b) Group (collectively, the “Designated Parent Policies”) SpinCo:
(i) shall notify Parent, as promptly as practicable, in respect of the period prior to the Effective Time to survive the Effective Time for the period for which such interests and rights would have survived without regard to the transactions contemplated hereby to the extent permitted by such policies; and any incident, circumstance or occurrence that may lead to a claim made proceeds received by Parent or any member of the Parent Group after the Effective Time under such policies and programs in respect of SpinCo and any member of the SpinCo Group shall be for the benefit of SpinCo and the SpinCo Group; provided that the interests and rights of SpinCo and the members of the SpinCo Group shall be subject to the terms and conditions of such insurance policies and programs, including any limits on coverage or scope, any deductibles and other fees and expenses and Parent’s allocation. In addition, to the extent that deductibles under the general liability, automobile liability, or workers’ compensation policies of Parent (the “Deductibles”) apply to claims under the Policies, Parent shall facilitate the administration and processing of such claims in a Designated Policymanner that makes available to the members of the SpinCo Group the benefit of the deductible reimbursement policies issued by Steward Insurancx Xxxxxny to American Home Shield Corporation prior to [•]. In addition, Parent will process and pay all deductibles with respect to claims under the Policies, and reimbursement, if any, by Steward Insurancx Xxxxxny with respect to any such claims shall be paid to SpinCo.
(i) SpinCo shall report any claim to Parent as promptly as practicable, and in any event in sufficient time so that such claim may be made in accordance with the policies’ terms and conditions;
(ii) SpinCo and the other members of the SpinCo Group shall be responsible for making payments directly to insurers where possible, and shall indemnify, hold harmless and reimburse Parent and the members of the Parent Group for any deductibles, self-insured retention, retrospective premium payments, and fees and expenses incurred by any member of the Parent Group to the extent resulting from any access to, or any claims made by SpinCo or any other members of the SpinCo Group under, any insurance provided pursuant to this Section 5.1(b), including claims previously reported and any indemnity payments, settlements, judgments, legal fees and allocated claims expenses and claim handling fees, whether such claims are made by a member of the SpinCo Group, employees or Third Parties;
(iii) SpinCo shall, and shall cause the other members of the SpinCo Group to, at SpinCo’s sole cost and expense, cooperate with and assist Parent and the members of the Parent Group and share such information Information as is reasonably necessary in order to permit Parent and the members of the Parent Group to manage and conduct the insurance matters contemplated by this Section 5.1, including with respect to any claims by Parent or any member of the Parent Group under any Designated Policy; and
(iiiiv) SpinCo shall exclusively bear (and neither Parent nor any members of the Parent Group shall have any obligation to repay or reimburse SpinCo or any member of the SpinCo Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts (including where any insurer declines, denies, delays or obstructs any claim payment) of all such claims made with respect to any losses, damages and Liability incurred by SpinCo or any member of the SpinCo Group under the policies as provided for in this Section 5.1(b). In the event an insurance policy aggregate is exhausted, or believed likely to be exhausted, due to noticed claims, the SpinCo Group, on the one hand, and the Parent Group, on the other hand, shall be responsible for their pro rata portion of the reinstatement premium, if any, based upon the losses of such Group submitted to Parent’s insurance carrier(s) (including any submissions prior to the Effective Time). To the extent that the Parent Group or the SpinCo Group is allocated more than its pro rata portion of such premium due to the timing of losses submitted to Parent’s insurance carrier(s), the other party shall promptly pay the first party an amount so that each Group has been properly allocated its pro rata portion of the reinstatement premium. Subject to the following sentence, Parent may elect not to reinstate the policy aggregate. In the event that Parent elects not to reinstate the policy aggregate, it shall provide prompt written notice to SpinCo, and SpinCo may direct Parent in writing to, and Parent shall, in such case reinstate the policy aggregate; provided that SpinCo shall be responsible for all reinstatement premiums and other costs associated with such reinstatement. In the event that any member of the Parent Group incurs any losses, damages or Liability prior to or in respect of the period prior to the Effective Time for which such member of the Parent Group is entitled to coverage under SpinCo third-party insurance policies, the Designated Policiessame process pursuant to this Section 5.1(b) shall apply, substituting “Parent” for “SpinCo” and “SpinCo” for “Parent.”
(c) Except as provided in Section 5.1(b), from and after the Effective Time, neither SpinCo nor any member of the SpinCo Group shall have any rights to or under any of the insurance policies of Parent or any other member of the Parent Group. At the Effective Time, SpinCo shall have in effect all insurance programs required to comply with SpinCoSpinCo and the SpinCo Group’s contractual obligations and such other Policies required by Law or as reasonably necessary or appropriate for companies operating a business similar to SpinCo’s.
(d) Neither SpinCo nor any member of the SpinCo Group, in connection with any making a claim under any insurance policy of Parent or any member of the Parent Group (including the Designated Policies)pursuant to this Section 5.1, shall take any action that would be reasonably likely to (i) have a materially an adverse impact on the then-current relationship between Parent or any member of the Parent Group, on the one hand, and the applicable insurance company, on the other hand; (ii) result in the applicable insurance company terminating or materially reducing coverage, or materially increasing the amount of any premium owed by Parent or any member of the Parent Group under the applicable insurance policy; or (iii) otherwise compromise, jeopardize or interfere in any material respect with the rights of Parent or any member of the Parent Group under the applicable insurance policy; provided that, for the avoidance of doubt, this Section 5.1(d) shall not preclude or otherwise restrict any member of the SpinCo Group from reporting claims to insurers in the ordinary course of business.
(e) All payments and reimbursements by SpinCo pursuant to this Section 5.1 will be made within fifteen (15) days after SpinCo’s receipt of an invoice therefor from Parent. In the event that SpinCo makes payments to insurance companies directly, then SpinCo shall make payments in compliance with the requirements and policies and procedures with respect to insurance payments in effect prior to the Effective Time. If Parent incurs costs to enforce SpinCo’s obligations herein, SpinCo agrees to indemnify and hold harmless Parent for such enforcement costs, including reasonable attorneys’ fees pursuant to Section 4.6. Parent shall retain the exclusive right to control its insurance policies and programs, including the right to exhaust, settle, release, commute, buy-back or otherwise resolve disputes with respect to any of its insurance policies and programs and to amend, modify or waive any rights under any such insurance policies and programs, notwithstanding whether any such policies or programs apply to any SpinCo Liabilities and/or claims SpinCo has made or could make in the future, and no member of the SpinCo Group shall erode, exhaust, settle, release, commute, buy-back or otherwise resolve disputes with Parent’s insurers with respect to any of Parent’s insurance policies and programs, or amend, modify or waive any rights under any such insurance policies and programs. SpinCo shall cooperate with Parent and share such information as is reasonably necessary in order to permit Parent to manage and conduct its insurance matters as Parent deems appropriate. Each Party and No member of the Parent Group shall have any obligation secure extended reporting for any claims under any Liability policies of any member of its applicable the Parent Group has the sole right to settle for any acts or otherwise resolve Third-Party Claims made against it or any member omissions of its applicable Group covered under an applicable insurance policy. Notwithstanding anything in the foregoing to the contrary, Parent shall have the sole right to settle or otherwise resolve Third-Party Claims covered under a Designated Policy without the prior written consent of SpinCo unless such settlement (i) involves any admission, finding or determination of wrongdoing or violation of Law by any member of the SpinCo Group or (ii) does not provide for a full, unconditional and irrevocable release of incurred prior to the applicable member(s) of the SpinCo Group from all Liability in connection with the Third-Party Claim, in which case Parent shall not settle or otherwise resolve such Third-Party Claims without the prior written consent of SpinCo (which consent may not be unreasonably withheld, delayed or conditioned)Effective Time.
(f) This Agreement shall not be considered as an attempted assignment of any policy of insurance or as a contract of insurance and shall not be construed to waive any right or remedy of any member of the Parent Group in respect of any insurance policy or any other contract or policy of insurance.
(g) SpinCo does hereby, for itself and each other member of the SpinCo Group, agree that no member of the Parent Group shall have any Liability whatsoever as a result of the insurance policies and practices of Parent and the members of the Parent Group as in effect at any time, including as a result of the level or scope of any such insurance, the creditworthiness of any insurance carrier, the terms and conditions of any policy, or the adequacy or timeliness of any notice to any insurance carrier with respect to any claim or potential claim or otherwise.
Appears in 2 contracts
Samples: Separation and Distribution Agreement (Frontdoor, Inc.), Separation and Distribution Agreement (AHS Holding Company, Inc.)
Insurance Matters. (a) Parent and SpinCo Varex agree to cooperate in good faith to provide for an orderly transition of insurance coverage from the date hereof through the Effective Time. In no event shall Parent, any other member of the Parent Group or any Parent Indemnitee have Liability or obligation whatsoever to any member of the SpinCo Varex Group in the event that any (i) insurance policy or insurance policy related contract shall be terminated or otherwise cease to be in effect for any reason, shall be unavailable or inadequate to cover any Liability of any member of the SpinCo Varex Group for any reason whatsoever or shall not be cancelled, not renewed or not extended beyond the current expiration date or (ii) any insurer declines, denies, delays or obstructs any claim paymentdate.
(b) From and after the Effective Time, SpinCowith respect to any losses, damages and Liability incurred by any member of the SpinCo Varex Group or any of their respective employees (including former or inactive employees) shall cease to be insured by, shall have no access or availability to or under, shall not be entitled to make claims on or under and shall not be entitled to claim benefits from or seek coverage under, and shall not have any rights to or under, any of Parent’s or any member of the Parent Group’s insurance policies or any of their respective self-insured programs in place prior to the Effective Time. With respect , Parent will pursue claims, at Varex’s sole cost and expense on behalf of Varex under (with Varex entitled to all Insurance Proceeds resulting from or arising out of any such claims) Parent’s Policies in place immediately prior to the Effective Time (and any extended reporting periods for claims made Policies) and Parent’s historical Policies, but solely to the extent that such Policies provided coverage for members of the Varex Group or the Varex Business prior to the Effective Time; provided that such right to require Parent to make claims on behalf of Varex under such Policies, shall be subject to the terms, conditions and exclusions of such Policies, including but not limited to any limits on coverage or under scope, any deductibles, self-insured retentions and other fees and expenses, and shall be subject to the policies provided on Schedule 5.1(b) (collectively, the “Designated Policies”) SpinCofollowing additional conditions:
(i) Varex shall notify Parent, as promptly as practicable, provide written notification to Parent of any incident, circumstance or occurrence that may lead request for Parent to pursue a claim made by Parent or any member of the Parent Group under a Designated Policy;
(ii) shallon behalf Varex pursuant to this Section 5.1(b), and Parent shall cause the other members of the SpinCo Group touse commercially reasonable efforts to pursue such claim, at SpinCothe Varex’s sole cost and expense, cooperate with as promptly as is reasonably practicable;
(ii) Varex and assist the members of the Varex Group shall indemnify, hold harmless and reimburse Parent and the members of the Parent Group for any deductibles, self-insured retention, fees, indemnity payments, settlements, judgments, legal fees, allocated claims expenses and share such information as is necessary in order to permit claim handling fees, and other expenses incurred by Parent and the or any members of the Parent Group to manage and conduct the insurance matters contemplated by this Section 5.1, including with respect to extent resulting from any pursuit of claims by Parent on behalf of Varex or any member other members of the Parent Varex Group under any Designated Policyinsurance provided pursuant to this Section 5.1(b), whether such claims are pursued on behalf of Varex, its employees or third Persons; and
(iii) Varex shall exclusively bear (and neither Parent nor any members of the Parent Group shall have any obligation to repay or reimburse SpinCo Varex or any member of the SpinCo Varex Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts (including where any insurer declines, denies, delays or obstructs any claim payment) of all such claims made with respect to any losses, damages and Liability incurred by any member pursued on behalf of the SpinCo Group prior to the Effective Time under the Designated Policies.
(c) At the Effective Time, SpinCo shall have in effect all insurance programs required to comply with SpinCo’s contractual obligations and such other Policies required by Law or as reasonably necessary or appropriate for companies operating a business similar to SpinCo’s.
(d) Neither SpinCo nor any member of the SpinCo Group, in connection with any claim under any insurance policy of Parent Varex or any member of the Parent Group (including the Designated Policies), shall take any action that would be reasonably likely to (i) have a materially adverse impact on the then-current relationship between Parent or any member of the Parent Group, on the one hand, and the applicable insurance company, on the other hand; (ii) result in the applicable insurance company terminating or materially reducing coverage, or materially increasing the amount of any premium owed by Parent or any member of the Parent Varex Group under the applicable insurance policy; or (iii) otherwise compromise, jeopardize or interfere Policies as provided for in any material respect with the rights of Parent or any member of the Parent Group under the applicable insurance policy.
(e) Parent shall retain the exclusive right to control its insurance policies and programs, including the right to exhaust, settle, release, commute, buy-back or otherwise resolve disputes with respect to any of its insurance policies and programs and to amend, modify or waive any rights under any such insurance policies and programs and no member of the SpinCo Group shall erode, exhaust, settle, release, commute, buy-back or otherwise resolve disputes with Parent’s insurers with respect to any of Parent’s insurance policies and programs, or amend, modify or waive any rights under any such insurance policies and programs. SpinCo shall cooperate with Parent and share such information as is necessary in order to permit Parent to manage and conduct its insurance matters as Parent deems appropriate. Each Party and any member of its applicable Group has the sole right to settle or otherwise resolve Third-Party Claims made against it or any member of its applicable Group covered under an applicable insurance policy. Notwithstanding anything in the foregoing to the contrary, Parent shall have the sole right to settle or otherwise resolve Third-Party Claims covered under a Designated Policy without the prior written consent of SpinCo unless such settlement (i) involves any admission, finding or determination of wrongdoing or violation of Law by any member of the SpinCo Group or (ii) does not provide for a full, unconditional and irrevocable release of the applicable member(s) of the SpinCo Group from all Liability in connection with the Third-Party Claim, in which case Parent shall not settle or otherwise resolve such Third-Party Claims without the prior written consent of SpinCo (which consent may not be unreasonably withheld, delayed or conditionedthis Section 5.1(b).
(f) This Agreement shall not be considered as an attempted assignment of any policy of insurance or as a contract of insurance and shall not be construed to waive any right or remedy of any member of the Parent Group in respect of any insurance policy or any other contract or policy of insurance.
(g) SpinCo does hereby, for itself and each other member of the SpinCo Group, agree that no member of the Parent Group shall have any Liability whatsoever as a result of the insurance policies and practices of Parent and the members of the Parent Group as in effect at any time, including as a result of the level or scope of any such insurance, the creditworthiness of any insurance carrier, the terms and conditions of any policy, or the adequacy or timeliness of any notice to any insurance carrier with respect to any claim or potential claim or otherwise.
Appears in 2 contracts
Samples: Separation and Distribution Agreement, Separation and Distribution Agreement
Insurance Matters. (a) Parent and SpinCo agree to cooperate in good faith to provide for an orderly transition of insurance coverage from the date hereof through the Effective Time. In no event shall Parent, any other member of the Parent Group or any Parent Indemnitee have Liability or obligation whatsoever to any member of the SpinCo Group in the event that any (i) insurance policy Policies or insurance policy policy-related contract shall be terminated or otherwise cease to be in effect for any reason, shall be unavailable or inadequate to cover any Liability of any member of the SpinCo Group for any reason whatsoever or shall not be cancelled, not renewed or not extended beyond the current expiration date or (ii) any insurer declines, denies, delays or obstructs any claim paymentdate.
(b) From Except as provided on Schedule 5.1(b), from and after the Effective Time, SpinCo, with respect to any Liability incurred prior to the Effective Time by any member of the SpinCo Group or any of their respective employees (including former or inactive employees) shall cease to be insured byGroup, shall have no Parent will provide SpinCo with access or availability to or to, and SpinCo may make claims under, shall not be entitled to make claims on or under and shall not be entitled to claim benefits from or seek coverage under, and shall not have any rights to or under, any of Parent’s or any member of the Parent Group’s insurance policies or any of their respective self-insured programs in place immediately prior to the Effective Time (and any extended reporting for claims made policies) and Parent’s historical policies of insurance, but solely to the extent that such policies provided coverage for members of the SpinCo Group or the SpinCo Business prior to the Effective Time. With respect ; provided that such access to, and the right to make claims under, such insurance policies, shall be subject to the terms, conditions and exclusions of such insurance policies, including but not limited to any limits on coverage or under scope, any deductibles, self-insured retentions and other fees and expenses, and shall be subject to the policies provided on Schedule 5.1(b) (collectively, the “Designated Policies”) SpinCofollowing additional conditions:
(i) SpinCo shall notify Parent, as promptly as practicable, of any incident, circumstance or occurrence that may lead to a claim made by Parent or any member of the Parent Group under a Designated PolicySpinCo pursuant to this Section 5.1(b);
(ii) shall, SpinCo and shall cause the other members of the SpinCo Group toshall indemnify, at SpinCo’s sole cost hold harmless and expense, cooperate with and assist reimburse Parent and the members of the Parent Group for any deductibles, self-insured retention, fees, indemnity payments, settlements, judgments, legal fees, allocated claims expenses and share such information as is necessary in order to permit claim handling fees, and other expenses incurred by Parent and the or any members of the Parent Group to manage and conduct the extent resulting from any access to, or any claims made by SpinCo or any other members of the SpinCo Group under, any insurance matters contemplated by provided pursuant to this Section 5.15.1(b), including with respect to any whether such claims are made by Parent SpinCo, its employees or any member of the Parent Group under any Designated Policythird Persons; and
(iii) SpinCo shall exclusively bear (and neither Parent nor any members of the Parent Group shall have any obligation to repay or reimburse SpinCo or any member of the SpinCo Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts (including where any insurer declines, denies, delays or obstructs any claim payment) of all such claims made with respect to any losses, damages and Liability incurred by SpinCo or any member of the SpinCo Group prior to the Effective Time under the Designated Policies.
(c) At policies as provided for in this Section 5.1(b). In the Effective Timeevent an insurance policy aggregate is exhausted, SpinCo shall have in effect all insurance programs required or believed likely to comply with SpinCo’s contractual obligations and such other Policies required by Law or as reasonably necessary or appropriate for companies operating a business similar be exhausted, due to SpinCo’s.
(d) Neither SpinCo nor any member of noticed claims, the SpinCo Group, in connection with any claim under any insurance policy of Parent or any member of the Parent Group (including the Designated Policies), shall take any action that would be reasonably likely to (i) have a materially adverse impact on the then-current relationship between Parent or any member of the Parent Group, on the one hand, and the applicable insurance companyParent Group, on the other hand; , shall be responsible for their pro rata portion of the reinstatement premium, if any, based upon the losses of such Group submitted to Parent’s insurance carrier(s) (iiincluding any submissions prior to the Effective Time). To the extent that the Parent Group or the SpinCo Group is allocated more than its pro rata portion of such premium due to the timing of losses submitted to Parent’s insurance carrier(s), the other party shall promptly pay the first party an amount so that each Group has been properly allocated its pro rata portion of the reinstatement premium. Subject to the following sentence, a Party may elect not to reinstate the policy aggregate. In the event that a Party elects not to reinstate the policy aggregate, it shall provide prompt written notice to the other Party. A Party which elects to reinstate the policy aggregate shall be responsible for all reinstatement premiums and other costs associated with such reinstatement.
(iv) result in In the applicable insurance company terminating or materially reducing coverage, or materially increasing the amount of any premium owed by Parent or event that any member of the Parent Group under incurs any Liability prior to or in respect of the applicable insurance policy; or (iii) otherwise compromise, jeopardize or interfere in any material respect with period prior to the rights of Parent or any Effective Time for which such member of the Parent Group is entitled to coverage under the applicable SpinCo’s third-party insurance policy.
(e) Parent shall retain the exclusive right to control its insurance policies and programs, including the right to exhaust, settle, release, commute, buy-back or otherwise resolve disputes with respect to any of its insurance policies and programs and to amend, modify or waive any rights under any such insurance policies and programs and no member of the SpinCo Group shall erode, exhaust, settle, release, commute, buy-back or otherwise resolve disputes with Parent’s insurers with respect to any of Parent’s insurance policies and programs, or amend, modify or waive any rights under any such insurance policies and programs. SpinCo shall cooperate with Parent and share such information as is necessary in order to permit Parent to manage and conduct its insurance matters as Parent deems appropriate. Each Party and any member of its applicable Group has the sole right to settle or otherwise resolve Third-Party Claims made against it or any member of its applicable Group covered under an applicable insurance policy. Notwithstanding anything in the foregoing to the contrary, Parent shall have the sole right to settle or otherwise resolve Third-Party Claims covered under a Designated Policy without the prior written consent of SpinCo unless such settlement (i) involves any admission, finding or determination of wrongdoing or violation of Law by any member of the SpinCo Group or (ii) does not provide for a full, unconditional and irrevocable release of the applicable member(s) of the SpinCo Group from all Liability in connection with the Third-Party Claim, in which case Parent shall not settle or otherwise resolve such Third-Party Claims without the prior written consent of SpinCo (which consent may not be unreasonably withheld, delayed or conditioned).
(f) This Agreement shall not be considered as an attempted assignment of any policy of insurance or as a contract of insurance and shall not be construed to waive any right or remedy of any member of the Parent Group in respect of any insurance policy or any other contract or policy of insurance.
(g) SpinCo does hereby, for itself and each other member of the SpinCo Group, agree that no member of the Parent Group shall have any Liability whatsoever as a result of the insurance policies and practices of Parent and the members of the Parent Group as in effect at any time, including as a result of the level or scope of any such insurancepolicies, the creditworthiness of any insurance carriersame process pursuant to this Section 5.1(b) shall apply, the terms and conditions of any policy, or the adequacy or timeliness of any notice to any insurance carrier with respect to any claim or potential claim or otherwise.substituting
Appears in 2 contracts
Samples: Separation and Distribution Agreement (EQT Corp), Separation and Distribution Agreement (Equitrans Midstream Corp)
Insurance Matters. (a) Parent Ventas and SpinCo agree to cooperate in good faith to provide for an orderly transition of insurance coverage from the date hereof through the Effective Time. In no event shall ParentVentas, any other member of the Parent Ventas Group or any Parent Ventas Indemnitee have Liability or obligation whatsoever to any member of the SpinCo Group in the event that any (i) insurance policy or other contract or policy of insurance policy related contract shall be terminated or otherwise cease to be in effect for any reason, shall be unavailable or inadequate to cover any Liability of any member of the SpinCo Group for any reason whatsoever or shall not be cancelled, not renewed or not extended beyond the current expiration date or (ii) any insurer declines, denies, delays or obstructs any claim paymentdate.
(b) From and after the Effective Time, SpinCo, any member of the SpinCo Group or any of their respective employees (including former or inactive employees) shall cease to be insured by, shall have no access or availability to or under, shall not be entitled to make claims on or under and shall not be entitled to claim benefits from or seek coverage under, and shall not have any rights to or under, any of Parent’s or any member of the Parent Group’s insurance policies or any of their respective self-insured programs in place prior to the Effective Time. With respect to claims on or under the policies provided on Schedule 5.1(b) (collectively, the “Designated Policies”) SpinCo:
(i) shall notify Parent, as promptly as practicable, of any incident, circumstance or occurrence that may lead to a claim made by Parent or any member of the Parent Group under a Designated Policy;
(ii) shall, and shall cause the other members of the SpinCo Group to, at SpinCo’s sole cost and expense, cooperate with and assist Parent and the members of the Parent Group and share such information as is necessary in order to permit Parent and the members of the Parent Group to manage and conduct the insurance matters contemplated by this Section 5.1, including with respect to any claims by Parent or any member of the Parent Group under any Designated Policy; and
(iii) shall exclusively bear (and neither Parent nor any members of the Parent Group shall have any obligation to repay or reimburse SpinCo or any member of the SpinCo Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts (including where any insurer declines, denies, delays or obstructs any claim payment) of all claims made with respect to any losses, damages and Liability incurred by any member of the SpinCo Group prior to the Effective Time, Ventas will provide SpinCo with access to, and SpinCo may, upon ten (10) days’ prior written notice to Ventas, make claims under, Ventas’s third-party insurance policies in place immediately prior to the Effective Time under and Ventas’s historical policies of insurance, but solely to the Designated Policies.
(c) At extent that such policies provided coverage for members of the SpinCo Group prior to the Effective Time; provided that such access to, and the right to make claims under, such insurance policies, shall be subject to the terms and conditions of such insurance policies, including any limits on coverage or scope, any deductibles and other fees and expenses, and shall be subject to the following additional conditions:
(i) SpinCo shall have report any claim to Ventas, as promptly as practicable, and in any event in sufficient time so that such claim may be made in accordance with Ventas’s claim reporting procedures in effect all insurance programs required immediately prior to comply the Effective Time (or in accordance with SpinCo’s contractual obligations and any modifications to such other Policies required procedures after the Effective Time communicated by Law or as reasonably necessary or appropriate for companies operating a business similar Ventas to SpinCo’s.SpinCo in writing in advance of any such claim);
(dii) Neither SpinCo and the members of the SpinCo Group shall exclusively bear and be liable for (and neither Ventas nor any members of the Ventas Group shall have any obligation to repay or reimburse SpinCo or any member of the SpinCo Group for), and SpinCo shall indemnify, hold harmless and reimburse Ventas and the members of the Ventas Group for, any deductibles, self-insured retention, fees and expenses incurred by Ventas or any members of the Ventas Group to the extent resulting from any access by SpinCo or any other members of the SpinCo Group to, or any claims made by SpinCo or any other members of the SpinCo Group under, any insurance provided pursuant to this Section 5.1(b), including any indemnity payments, settlements, judgments, legal fees and allocated claims expenses and claim handling fees, whether such claims are made by members of the SpinCo Group, in connection with its employees or third Persons; and
(iii) SpinCo shall exclusively bear and be liable for (and neither Ventas nor any claim under members of the Ventas Group shall have any insurance policy of Parent obligation to repay or reimburse SpinCo or any member of the Parent SpinCo Group (including the Designated Policiesfor), and SpinCo shall take any action that would be reasonably likely to (i) have a materially adverse impact on indemnify, hold harmless and reimburse Ventas and the then-current relationship between Parent members of the Ventas Group for, all uninsured, uncovered, unavailable or uncollectible amounts of all such claims made by SpinCo or any member of the Parent SpinCo Group under the policies as provided for in this Section 5.1(b). In the event an insurance policy aggregate is exhausted, or believed likely to be exhausted, due to noticed claims, the SpinCo Group, on the one hand, and the applicable insurance companyVentas Group, on the other hand, shall be responsible for their pro rata portion of the reinstatement premium, if any, based upon the losses of such Group submitted to Ventas’s insurance carrier(s) (including any submissions prior to the Effective Time). To the extent that the Ventas Group or the SpinCo Group is allocated more than its pro rata portion of such premium due to the timing of losses submitted to Ventas’s insurance carrier(s), the other party shall promptly pay the first party an amount so that each Group has been properly allocated its pro rata portion of the reinstatement premium. Subject to the following sentence, Ventas may elect not to reinstate the policy aggregate. In the event that Ventas elects not to reinstate the policy aggregate, it shall provide prompt written notice to SpinCo, and SpinCo may direct Ventas in writing to, and Ventas shall, in such case, reinstate the policy aggregate; provided that SpinCo shall be responsible for all reinstatement premiums and other costs associated with such reinstatement.
(iiiv) result in In the applicable insurance company terminating or materially reducing coverage, or materially increasing the amount of any premium owed by Parent or event that any member of the Parent Ventas Group under incurs any losses, damages or Liability prior to or in respect of the applicable insurance policy; or (iii) otherwise compromise, jeopardize or interfere in any material respect with period prior to the rights of Parent or any Effective Time for which such member of the Parent Ventas Group is entitled to coverage under the applicable SpinCo’s Third Party insurance policy.
(e) Parent shall retain the exclusive right to control its insurance policies and programs, including the right to exhaust, settle, release, commute, buy-back or otherwise resolve disputes with respect to any of its insurance policies and programs and to amend, modify or waive any rights under any such insurance policies and programs and no member of the SpinCo Group shall erode, exhaust, settle, release, commute, buy-back or otherwise resolve disputes with Parent’s insurers with respect to any of Parent’s insurance policies and programs, or amend, modify or waive any rights under any such insurance policies and programs. SpinCo shall cooperate with Parent and share such information as is necessary in order to permit Parent to manage and conduct its insurance matters as Parent deems appropriate. Each Party and any member of its applicable Group has the sole right to settle or otherwise resolve Third-Party Claims made against it or any member of its applicable Group covered under an applicable insurance policy. Notwithstanding anything in the foregoing to the contrary, Parent shall have the sole right to settle or otherwise resolve Third-Party Claims covered under a Designated Policy without the prior written consent of SpinCo unless such settlement (i) involves any admission, finding or determination of wrongdoing or violation of Law by any member of the SpinCo Group or (ii) does not provide for a full, unconditional and irrevocable release of the applicable member(s) of the SpinCo Group from all Liability in connection with the Third-Party Claim, in which case Parent shall not settle or otherwise resolve such Third-Party Claims without the prior written consent of SpinCo (which consent may not be unreasonably withheld, delayed or conditioned).
(f) This Agreement shall not be considered as an attempted assignment of any policy of insurance or as a contract of insurance and shall not be construed to waive any right or remedy of any member of the Parent Group in respect of any insurance policy or any other contract or policy of insurance.
(g) SpinCo does hereby, for itself and each other member of the SpinCo Group, agree that no member of the Parent Group shall have any Liability whatsoever as a result of the insurance policies and practices of Parent and the members of the Parent Group as in effect at any time, including as a result of the level or scope of any such insurancepolicies, the creditworthiness of any insurance carriersame process pursuant to this Section 5.1(b) shall apply, the terms substituting “Ventas” for “SpinCo” and conditions of any policy, or the adequacy or timeliness of any notice to any insurance carrier with respect to any claim or potential claim or otherwise“SpinCo” for “Ventas.”
Appears in 2 contracts
Samples: Separation and Distribution Agreement (Care Capital Properties, Inc.), Separation and Distribution Agreement (Care Capital Properties, Inc.)
Insurance Matters. (a) Parent Logiq and SpinCo Lova agree to cooperate in good faith to provide for an orderly transition of insurance coverage from the date hereof Execution Date through the Effective Time. In no event shall ParentLogiq, any other member of the Parent Logiq Group or any Parent Logiq Indemnitee have any Liability or obligation whatsoever to any member of the SpinCo AppLogiq Group in the event that any (i) insurance policy or other contract or policy of insurance policy related contract shall be terminated or otherwise cease to be in effect for any reason, shall be unavailable or inadequate to cover any Liability of any member of the SpinCo AppLogiq Group for any reason whatsoever or shall not be cancelled, not renewed or not extended beyond the current expiration date or (ii) any insurer declines, denies, delays or obstructs any claim paymentdate.
(b) From and after the Effective Time, SpinCo, any member of the SpinCo Group or any of their respective employees (including former or inactive employees) shall cease to be insured by, shall have no access or availability to or under, shall not be entitled to make claims on or under and shall not be entitled to claim benefits from or seek coverage under, and shall not have any rights to or under, any of Parent’s or any member of the Parent Group’s insurance policies or any of their respective self-insured programs in place prior to the Effective Time. With respect to claims on or under the policies provided on Schedule 5.1(b) (collectively, the “Designated Policies”) SpinCo:
(i) shall notify Parent, as promptly as practicable, of any incident, circumstance or occurrence that may lead to a claim made by Parent or any member of the Parent Group under a Designated Policy;
(ii) shall, and shall cause the other members of the SpinCo Group to, at SpinCo’s sole cost and expense, cooperate with and assist Parent and the members of the Parent Group and share such information as is necessary in order to permit Parent and the members of the Parent Group to manage and conduct the insurance matters contemplated by this Section 5.1, including with respect to any claims by Parent or any member of the Parent Group under any Designated Policy; and
(iii) shall exclusively bear (and neither Parent nor any members of the Parent Group shall have any obligation to repay or reimburse SpinCo or any member of the SpinCo Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts (including where any insurer declines, denies, delays or obstructs any claim payment) of all claims made with respect to any losses, damages and Liability incurred by any member of the SpinCo Group AppLogiq Group, or arising out of facts, events or circumstances occurring, prior to the Effective Time, Logiq will provide Lova with access to, and Lova may, upon ten (10) days’ prior written notice to Logiq, make claims under, Logiq’s third-party insurance policies in place immediately prior to the Effective Time and Logiq’s historical third-party policies of insurance, but solely to the extent that such policies provided coverage for AppLogiq Liabilities or Liabilities arising from or in connection with actions, inactions, events, omissions, conditions, facts or circumstances occurring or existing prior to the Effective Time, in each case relating to, arising out of or resulting from the AppLogiq Business, the AppLogiq Assets or the AppLogiq Liabilities; provided that such access to, and the right to make claims under, such insurance policies shall be subject to the terms and conditions of such insurance policies, including any limits on coverage or scope, any deductibles, self-insured retentions, loss reimbursements and other fees and expenses, and any retrospectively rated or other premium adjustments, resulting from such losses, damages or Liability. Any deductible, loss reimbursement, other fee or expense, or retrospectively rated or other premium adjustment, resulting from such losses, damages or Liability shall be Lova’ sole responsibility. Lova’ access shall be subject to the following additional conditions:
(i) Lova shall report any claim to Logiq, as promptly as practicable, and in any event in sufficient time so that such claim may be made in accordance with Logiq’s claim reporting procedures in effect immediately prior to the Effective Time (or in accordance with any modifications to such procedures after the Effective Time communicated by Logiq to Lova in writing);
(ii) Lova may, in its sole discretion, report such claim to the insurers on its and/or Lova’s behalf with a request that the insurers defend and indemnify it and/or Lova;
(iii) Lova and the members of the AppLogiq Group shall indemnify, hold harmless and reimburse Logiq and the members of the Logiq Group for any fees and expenses incurred by Logiq or any members of the Logiq Group to the extent resulting from any access to, any claims made by Lova or any other members of the AppLogiq Group under, any insurance provided pursuant to this Section 4.1(b), including any indemnity payments, settlements, judgments, legal fees and allocated claim or loss adjusting expenses and claim handling fees, whether such claims are made by Lova, its employees or Third Parties; and
(iv) Lova shall exclusively bear (and neither Logiq nor any members of the Logiq Group shall have any obligation to repay or reimburse Lova or any member of the AppLogiq Group for) and shall be liable for all uninsured, uncovered, unavailable or uncollectible amounts of all such claims made by Lova or any member of the AppLogiq Group under the Designated Policiespolicies as provided for in this Section 4.1(b).
(c) In the event that any member of the Logiq Group incurs any losses, damages or Liability prior to or in respect of the period prior to the Effective Time for which such member of the Logiq Group is entitled to coverage under Lova’s third-party insurance policies, the same process pursuant to this Section 4.1(b) shall apply, substituting “Logiq” for “Lova” and “Lova” for “Logiq.”
(d) Except as provided in Section 4.1(b), from and after the Effective Time, neither Lova nor any member of the AppLogiq Group shall have any rights to or under any of the insurance policies of Logiq or any other member of the Logiq Group. At the Effective Time, SpinCo Lova shall have in effect all insurance programs required to comply with SpinCoLova’s contractual obligations and such other Policies insurance policies required by Law or as reasonably necessary or appropriate for companies operating a business similar to SpinCoLova’s. Such insurance programs may include general liability, commercial auto liability, workers’ compensation, employer’s liability, cyber security, product liability, professional services liability, property, open lot, employment practices liability, employee dishonesty/crime, directors’ and officers’ liability and fiduciary liability.
(de) Neither SpinCo Lova nor any member of the SpinCo AppLogiq Group, in connection with any making a claim under any insurance policy of Parent Logiq or any member of the Parent Logiq Group (including the Designated Policies)pursuant to this Section 4.1, shall take any action that would be reasonably likely to (i) have a materially an adverse impact on the then-current relationship between Parent Logiq or any member of the Parent Logiq Group, on the one hand, and the applicable insurance company, on the other hand; , (ii) result in the applicable insurance company terminating or materially reducing coverage, or materially increasing the amount of any premium owed by Parent Logiq or any member of the Parent Logiq Group under the applicable insurance policy; , or (iii) otherwise compromise, jeopardize or interfere in any material respect with the rights of Parent Logiq or any member of the Parent Logiq Group under the applicable insurance policy.
(ef) Parent All payments and reimbursements by Lova pursuant to this Section 4.1 will be made within thirty (30) days after Lova’s receipt of an invoice therefor from Logiq. If Logiq incurs costs to enforce Lova’s obligations herein, Lova agrees to indemnify and hold harmless Logiq for such enforcement costs, including reasonable attorneys’ fees pursuant to Section 3.6. Logiq shall retain the exclusive right to control its insurance policies and programs, including the right under the policies or applicable law to settle the policies to which losses or claim expenses are allocated, to exhaust, settle, release, commute, buy-back or otherwise resolve disputes with respect to any of its insurance policies and programs and to amend, modify or waive any rights under any such insurance policies and programs, notwithstanding whether any such policies or programs apply to any AppLogiq Liabilities and/or claims Lova has made or could make in the future, and no member of the SpinCo AppLogiq Group shall allocate losses or claims or loss adjusting expenses to, or erode, exhaust, settle, release, commute, buy-back or otherwise resolve disputes with ParentLogiq’s insurers with respect to any of ParentLogiq’s insurance policies and programs, or amend, modify or waive any rights under any such insurance policies and programs. SpinCo Lova shall cooperate with Parent Logiq and share such information as is reasonably necessary in order to permit Parent Logiq to manage and conduct its insurance matters as Parent it deems appropriate. Each Party and Logiq shall share such information with Lova as is reasonably necessary to enable Lova so to cooperate with Logiq. Except as otherwise expressly provided in this Agreement, neither Logiq nor any member of its applicable the members of the Logiq Group has the sole right shall have any obligation to settle or otherwise resolve Third-Party Claims made against it secure extended reporting for any claims under any liability policies of Logiq or any member of its applicable the Logiq Group covered under an applicable insurance policy. Notwithstanding anything in the foregoing to the contrary, Parent shall have the sole right to settle for any acts or otherwise resolve Third-Party Claims covered under a Designated Policy without the prior written consent of SpinCo unless such settlement (i) involves any admission, finding or determination of wrongdoing or violation of Law omissions by any member of the SpinCo AppLogiq Group or (ii) does not provide for a full, unconditional and irrevocable release of incurred prior to the applicable member(s) of the SpinCo Group from all Liability in connection with the Third-Party Claim, in which case Parent shall not settle or otherwise resolve such Third-Party Claims without the prior written consent of SpinCo (which consent may not be unreasonably withheld, delayed or conditioned)Effective Time.
(fg) This Agreement shall not be considered as an attempted assignment of any policy of insurance or as a contract of insurance and shall not be construed to waive any right or remedy of any member of the Parent Logiq Group in respect of any insurance policy or any other contract or policy of insurance.
(gh) SpinCo Lova does hereby, for itself and each other member of the SpinCo AppLogiq Group, agree that no member of the Parent Logiq Group shall have any Liability whatsoever as a result of the insurance policies and practices of Parent Logiq and the members of the Parent Logiq Group as in effect at any time, including as a result of the level or scope of any such insurance, the creditworthiness of any insurance carrier, the terms and conditions of any policy, or the adequacy or timeliness of any notice to any insurance carrier with respect to any claim or potential claim or otherwise.
Appears in 2 contracts
Samples: Master Distribution Agreement (Lovarra), Master Distribution Agreement (Logiq, Inc.)
Insurance Matters. (a) Parent In accordance with the Transition Services Agreement, until January 1, 2015 (the “Insurance Termination Date”), SPG and SpinCo agree to cooperate in good faith to provide for an orderly transition SPG LP shall, and shall cause the relevant members of the SPG Group to, maintain the insurance coverage from applicable to the date hereof through WPG Business pursuant to the terms and conditions and coverages of the existing insurance policies of the SPG Group in effect as of the Effective Time. In ; provided, however, that in no event shall ParentSPG, any other member of the Parent SPG Group or any Parent SPG Indemnitee have any Liability or obligation whatsoever to any member of the SpinCo WPG Group in the event that any (i) insurance policy or other contract or policy of insurance policy related contract shall be terminated or otherwise cease to be in effect for any reason, shall be unavailable or inadequate to cover any Liability of any member of the SpinCo WPG Group for any reason whatsoever or shall not be cancelled, not renewed or not extended beyond the current expiration date or (ii) date. Prior to the Insurance Termination Date, SPG and WPG shall discuss in good faith whether to continue any insurer declinesinsurance coverages beyond the Insurance Termination Date and shall cooperate in good faith to provide for an orderly transition of insurance coverage following the Insurance Termination Date; provided, denieshowever, delays or obstructs that SPG shall not be required to continue any claim paymentsuch insurance coverages beyond the Insurance Termination Date.
(b) From and after the Effective Time, SpinCo, any member of the SpinCo Group or any of their respective employees (including former or inactive employees) shall cease to be insured by, shall have no access or availability to or under, shall not be entitled to make claims on or under and shall not be entitled to claim benefits from or seek coverage under, and shall not have any rights to or under, any of Parent’s or any member of the Parent Group’s insurance policies or any of their respective self-insured programs in place prior to the Effective Time. With respect to claims on or under the policies provided on Schedule 5.1(b) (collectively, the “Designated Policies”) SpinCo:
(i) shall notify Parent, as promptly as practicable, of any incident, circumstance or occurrence that may lead to a claim made by Parent or any member of the Parent Group under a Designated Policy;
(ii) shall, and shall cause the other members of the SpinCo Group to, at SpinCo’s sole cost and expense, cooperate with and assist Parent and the members of the Parent Group and share such information as is necessary in order to permit Parent and the members of the Parent Group to manage and conduct the insurance matters contemplated by this Section 5.1, including with respect to any claims by Parent or any member of the Parent Group under any Designated Policy; and
(iii) shall exclusively bear (and neither Parent nor any members of the Parent Group shall have any obligation to repay or reimburse SpinCo or any member of the SpinCo Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts (including where any insurer declines, denies, delays or obstructs any claim payment) of all claims made with respect to any losses, damages and Liability incurred by any member of the SpinCo WPG Group prior to the Insurance Termination Date, SPG will provide WPG with access to, and WPG may, upon ten (10) days’ prior written notice to SPG, make claims under, SPG’s third-party insurance policies in place prior to the Insurance Termination Date and SPG’s historical policies of insurance, but solely to the extent that such policies provided coverage for members of the WPG Group prior to the Insurance Termination Date; provided that such access to, and the right to make claims under, such insurance policies, shall be subject to the terms and conditions of such insurance policies, including any limits on coverage or scope, any deductibles and other fees and expenses, and shall be subject to the following additional conditions:
(i) WPG shall report any claim to SPG, as promptly as practicable, and in any event in sufficient time so that such claim may be made in accordance with SPG’s claim reporting procedures in effect immediately prior to the Effective Time (or in accordance with any modifications to such procedures after the Effective Time communicated by SPG to WPG in writing);
(ii) WPG and the members of the WPG Group shall exclusively bear and be liable for (and neither SPG nor any members of the SPG Group shall have any obligation to repay or reimburse WPG or any member of the WPG Group for), and shall indemnify, hold harmless and reimburse SPG and the members of the SPG Group for, any deductibles, self-insured retention, fees and expenses to the extent resulting from any access to, or any claims made by WPG or any other members of the WPG Group or otherwise made in respect of losses of the WPG Business under, any insurance provided pursuant to this Section 5.1(b), including any indemnity payments, settlements, judgments, legal fees and allocated claims expenses and claim handling fees, whether such claims are made by members of the WPG Group, its employees or third Persons; and
(iii) WPG shall exclusively bear and be liable for (and neither SPG nor any members of the SPG Group shall have any obligation to repay or reimburse WPG or any member of the WPG Group for) all uninsured, uncovered, unavailable or uncollectible amounts of all such claims made by WPG or any member of the WPG Group under the Designated Policiespolicies as provided for in this Section 5.1(b). In the event an insurance policy aggregate is exhausted, or believed likely to be exhausted, due to noticed claims, the WPG Group, on the one hand, and the SPG Group, on the other hand, shall be responsible for their pro rata portion of the reinstatement premium, if any, based upon the losses of such Group submitted to SPG’s insurance carrier(s) (including any submissions prior to the Insurance Termination Date). To the extent that the SPG Group or the WPG Group is allocated more than its pro rata portion of such premium due to the timing of losses submitted to SPG’s insurance carrier(s), the other party shall promptly pay the first party an amount so that each Group has been properly allocated its pro rata portion of the reinstatement premium. Subject to the following sentence, SPG may elect not to reinstate the policy aggregate. In the event that, at any time prior to the Insurance Termination Date, SPG elects not to reinstate the policy aggregate, it shall provide prompt written notice to WPG, and WPG may direct SPG in writing to, and SPG shall, in such case, reinstate the policy aggregate; provided that WPG shall be responsible for all reinstatement premiums and other costs associated with such reinstatement.
(c) Except as provided in Section 5.1(b), from and after the Insurance Termination Date, neither WPG nor any member of the WPG Group shall have any rights to or under any of the insurance policies of SPG or any other member of the SPG Group. At the Effective TimeInsurance Termination Date, SpinCo shall WPG shall, unless it has obtained the prior written consent of SPG or SPG LP, have in effect all insurance programs required to comply with SpinCoWPG’s contractual obligations and such other Policies insurance policies required by Law or as reasonably necessary or appropriate for companies operating a business similar to SpinCoWPG’s. Such insurance programs may include general liability, commercial auto liability, workers’ compensation, employer’s liability, product liability, professional services liability, property, cargo, employment practices liability, employee dishonesty/crime, directors’ and officers’ liability and fiduciary liability.
(d) Neither SpinCo WPG nor any member of the SpinCo WPG Group, in connection with any making a claim under any insurance policy of Parent SPG or any member of the Parent SPG Group (including the Designated Policies)pursuant to this Section 5.1, shall take any action that would be reasonably likely to (i) have a materially an adverse impact on the then-current relationship between Parent SPG or any member of the Parent SPG Group, on the one hand, and the applicable insurance company, on the other hand; (ii) result in the applicable insurance company terminating or materially reducing coverage, or materially increasing the amount of any premium owed by Parent SPG or any member of the Parent SPG Group under the applicable insurance policy; or (iii) otherwise compromise, jeopardize or interfere in any material respect with the rights of Parent SPG or any member of the Parent SPG Group under the applicable insurance policy.
(e) Parent All payments and reimbursements by WPG pursuant to this Section 5.1 will be made within fifteen (15) days after WPG’s receipt of an invoice therefor from SPG. If SPG incurs costs to enforce WPG’s obligations herein, WPG agrees to indemnify and hold harmless SPG for such enforcement costs, including reasonable attorneys’ fees pursuant to Section 4.6(b). SPG shall retain the exclusive right to control its insurance policies and programs, including the right to exhaust, settle, release, commute, buy-back or otherwise resolve disputes with respect to any of its insurance policies and programs and to amend, modify or waive any rights under any such insurance policies and programs, notwithstanding whether any such policies or programs apply to any WPG Liabilities and/or claims WPG has made or could make in the future, and no member of the SpinCo WPG Group shall erode, exhaust, settle, release, commute, buy-back buyback or otherwise resolve disputes with ParentSPG’s insurers with respect to any of ParentSPG’s insurance policies and programs, or amend, modify or waive any rights under any such insurance policies and programs. SpinCo WPG shall cooperate with Parent SPG and share such information as is reasonably necessary in order to permit Parent SPG to manage and conduct its insurance matters as Parent it deems appropriate. Each Party and Neither SPG nor any member of its applicable the members of the SPG Group has the sole right shall have any obligation to settle or otherwise resolve Third-Party Claims made against it secure extended reporting for any claims under any Liability policies of SPG or any member of its applicable the SPG Group covered under an applicable insurance policy. Notwithstanding anything in the foregoing to the contrary, Parent shall have the sole right to settle for any acts or otherwise resolve Third-Party Claims covered under a Designated Policy without the prior written consent of SpinCo unless such settlement (i) involves any admission, finding or determination of wrongdoing or violation of Law omissions by any member of the SpinCo WPG Group or (ii) does not provide for a full, unconditional and irrevocable release of incurred prior to the applicable member(s) of the SpinCo Group from all Liability in connection with the Third-Party Claim, in which case Parent shall not settle or otherwise resolve such Third-Party Claims without the prior written consent of SpinCo (which consent may not be unreasonably withheld, delayed or conditioned)Insurance Termination Date.
(f) This Agreement shall not be considered as an attempted assignment of any policy of insurance or as a contract of insurance and shall not be construed to waive any right or remedy of any member of the Parent SPG Group in respect of any insurance policy or any other contract or policy of insurance.
(g) SpinCo WPG does hereby, for itself and each other member of the SpinCo WPG Group, agree that no member of the Parent SPG Group shall have any Liability whatsoever as a result of the insurance policies and practices of Parent SPG and the members of the Parent SPG Group as in effect at any time, including as a result of the level or scope of any such insurance, the creditworthiness of any insurance carrier, the terms and conditions of any policy, or the adequacy or timeliness of any notice to any insurance carrier with respect to any claim or potential claim or otherwise.
Appears in 2 contracts
Samples: Separation and Distribution Agreement (Washington Prime Group Inc.), Separation and Distribution Agreement (Washington Prime Group Inc.)
Insurance Matters. (a) Parent and SpinCo agree to cooperate in good faith to provide for an orderly transition of insurance coverage from the date hereof through the Effective Time. In no event shall Parent, any other member of the Parent Group or any Parent Indemnitee have Liability or obligation whatsoever to any member of the SpinCo Group in the event that any (i) insurance policy Policy or other contract or Policy of insurance policy related contract shall be terminated or otherwise cease to be in effect for any reason, shall be unavailable or inadequate to cover any Liability of any member of the SpinCo Group for any reason whatsoever or shall not be cancelled, not renewed or not extended beyond the current expiration date or (ii) any insurer declines, denies, delays or obstructs any claim paymentdate.
(b) From Parent agrees to use its reasonable best efforts to cause the interests and after rights of SpinCo and the Effective Time, SpinCo, any member members of the SpinCo Group as of the Effective Time as insureds or beneficiaries or in any other capacity under occurrence-based Policies and programs (and under claims-made Policies and programs to the extent a claim has been submitted prior to the Effective Time) of their respective employees (including former or inactive employees) shall cease to be insured by, shall have no access or availability to or under, shall not be entitled to make claims on or under and shall not be entitled to claim benefits from or seek coverage under, and shall not have any rights to or under, any of Parent’s Parent or any member of the Parent Group’s insurance policies or any of their respective self-insured programs in place prior to the Effective Time. With respect to claims on or under the policies provided on Schedule 5.1(b) Group (collectively, the “Designated Parent Policies”) SpinCo:
(i) shall notify Parent, as promptly as practicable, in respect of the period prior to the Effective Time to survive the Effective Time for the period for which such interests and rights would have survived without regard to the transactions contemplated hereby to the extent permitted by such Policies; and any incident, circumstance or occurrence that may lead to a claim made proceeds received by Parent or any member of the Parent Group after the Effective Time under such Policies and programs in respect of SpinCo and any member of the SpinCo Group shall be for the benefit of SpinCo and the SpinCo Group; provided, that the interests and rights of SpinCo and the members of the SpinCo Group shall be subject to the terms and conditions of such Policies and programs, including any limits on coverage or scope, any deductibles and other fees and expenses and Parent’s allocation. In addition, to the extent that deductibles under the general liability, automobile liability, or workers’ compensation Policies of Parent (the “Deductibles”) apply to claims under the Policies, Parent shall facilitate the administration and processing of such claims in a Designated Policymanner that makes available to the members of the SpinCo Group the benefit of the deductible reimbursement Policies of Parent or any member of the Parent Group in respect of the period prior to the Effective Time.
(i) SpinCo shall report any claim to Parent as promptly as practicable, and in any event in sufficient time so that such claim may be made in accordance with the Policies’ terms and conditions;
(ii) SpinCo and the other members of the SpinCo Group shall be responsible for making payments directly to insurers where possible, and shall indemnify, hold harmless and reimburse Parent and the members of the Parent Group for any deductibles, self-insured retention, retrospective premium payments, and fees and expenses incurred by any member of the Parent Group to the extent resulting from any access to, or any claims made by SpinCo or any other members of the SpinCo Group under, any insurance provided pursuant to this Section 5.1(b), including claims previously reported and any indemnity payments, settlements, judgments, legal fees and allocated claims expenses and claim handling fees, whether such claims are made by a member of the SpinCo Group, employees or Third Parties;
(iii) SpinCo shall, and shall cause the other members of the SpinCo Group to, at SpinCo’s sole cost and expense, cooperate with and assist Parent and the members of the Parent Group and share such information Information as is reasonably necessary in order to permit Parent and the members of the Parent Group to manage and conduct the insurance matters contemplated by this Section 5.1, including with respect to any claims by Parent or any member of the Parent Group under any Designated Policy; and
(iiiiv) SpinCo shall exclusively bear (and neither Parent nor any members of the Parent Group shall have any obligation to repay or reimburse SpinCo or any member of the SpinCo Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts (including where any insurer declines, denies, delays or obstructs any claim payment) of all such claims made with respect to any losses, damages and Liability incurred by SpinCo or any member of the SpinCo Group under the Policies as provided for in this Section 5.1(b). In the event an insurance policy aggregate is exhausted, or believed likely to be exhausted, due to noticed claims, the SpinCo Group, on the one hand, and the Parent Group, on the other hand, shall be responsible for their pro rata portion of the reinstatement premium, if any, based upon the losses of such Group submitted to Parent’s insurance carrier(s) (including any submissions prior to the Effective Time). To the extent that the Parent Group or the SpinCo Group is allocated more than its pro rata portion of such premium due to the timing of losses submitted to Parent’s insurance carrier(s), the other party shall promptly pay the first party an amount so that each Group has been properly allocated its pro rata portion of the reinstatement premium. Subject to the following sentence, Parent may elect not to reinstate the policy aggregate. In the event that Parent elects not to reinstate the policy aggregate, it shall provide prompt written notice to SpinCo, and SpinCo may direct Parent in writing to, and Parent shall, in such case reinstate the policy aggregate; provided that SpinCo shall be responsible for all reinstatement premiums and other costs associated with such reinstatement. In the event that any member of the Parent Group incurs any losses, damages or Liability prior to or in respect of the period prior to the Effective Time for which such member of the Parent Group is entitled to coverage under SpinCo third-party Policies, the Designated Policiessame process pursuant to this Section 5.1(b) shall apply, substituting “Parent” for “SpinCo” and “SpinCo” for “Parent.”
(c) Except as provided in Section 5.1(b), from and after the Effective Time, neither SpinCo nor any member of the SpinCo Group shall have any rights to or under any of the Policies of Parent or any other member of the Parent Group. At the Effective Time, SpinCo shall have in effect all insurance programs required to comply with SpinCoSpinCo and the SpinCo Group’s contractual obligations and such other Policies required by Law or as reasonably necessary or appropriate for companies operating a business similar to SpinCo’s.
(d) Neither SpinCo nor any member of the SpinCo Group, in connection with any making a claim under any insurance policy Policy of Parent or any member of the Parent Group (including the Designated Policies)pursuant to this Section 5.1, shall take any action that would be reasonably likely to (i) have a materially an adverse impact on the then-current relationship between Parent or any member of the Parent Group, on the one hand, and the applicable insurance company, on the other hand; (ii) result in the applicable insurance company terminating or materially reducing coverage, or materially increasing the amount of any premium owed by Parent or any member of the Parent Group under the applicable insurance policyPolicy; or (iii) otherwise compromise, jeopardize or interfere in any material respect with the rights of Parent or any member of the Parent Group under the applicable insurance policyPolicy; provided that, for the avoidance of doubt, this Section 5.1(d) shall not preclude or otherwise restrict any member of the SpinCo Group from reporting claims to insurers in the ordinary course of business.
(e) All payments and reimbursements by SpinCo pursuant to this Section 5.1 will be made within 15 days after SpinCo’s receipt of an invoice with supporting documentation therefor from Parent. In the event that SpinCo makes payments to insurance companies directly, then SpinCo shall make payments in compliance with the requirements and Policies and procedures with respect to insurance payments in effect prior to the Effective Time. If Parent incurs costs to enforce SpinCo’s obligations herein, SpinCo agrees to indemnify and hold harmless Parent for such enforcement costs, including reasonable attorneys’ fees pursuant to Section 4.6. Parent shall retain the exclusive right to control its insurance policies Policies and programs, including the right to exhaust, settle, release, commute, buy-back or otherwise resolve disputes with respect to any of its insurance policies Policies and programs and to amend, modify or waive any rights under any such insurance policies Policies and programs, notwithstanding whether any such Policies or programs apply to any SpinCo Liabilities and/or claims SpinCo has made or could make in the future, and no member of the SpinCo Group shall erode, exhaust, settle, release, commute, buy-back or otherwise resolve disputes with Parent’s insurers with respect to any of Parent’s insurance policies Policies and programs, or amend, modify or waive any rights under any such insurance policies Policies and programs. SpinCo shall cooperate with Parent and share such information as is reasonably necessary in order to permit Parent to manage and conduct its insurance matters as Parent deems appropriate. Each Party and No member of the Parent Group shall have any obligation to secure extended reporting for any claims under any Liability Policies of any member of its applicable the Parent Group has the sole right to settle for any acts or otherwise resolve Third-Party Claims made against it or any member omissions of its applicable Group covered under an applicable insurance policy. Notwithstanding anything in the foregoing to the contrary, Parent shall have the sole right to settle or otherwise resolve Third-Party Claims covered under a Designated Policy without the prior written consent of SpinCo unless such settlement (i) involves any admission, finding or determination of wrongdoing or violation of Law by any member of the SpinCo Group or (ii) does not provide for a full, unconditional and irrevocable release of incurred prior to the applicable member(s) of the SpinCo Group from all Liability in connection with the Third-Party Claim, in which case Parent shall not settle or otherwise resolve such Third-Party Claims without the prior written consent of SpinCo (which consent may not be unreasonably withheld, delayed or conditioned)Effective Time.
(f) This Agreement shall not be considered as an attempted assignment of any policy Policy of insurance or as a contract of insurance and shall not be construed to waive any right or remedy of any member of the Parent Group in respect of any insurance policy Policy or any other contract or policy Policy of insurance.
(g) SpinCo does hereby, for itself and each other member of the SpinCo Group, agree that no member of the Parent Group shall have any Liability whatsoever as a result of the insurance policies Policies and practices of Parent and the members of the Parent Group as in effect at any time, including as a result of the level or scope of any such insurance, the creditworthiness of any insurance carrier, the terms and conditions of any policyPolicy, or the adequacy or timeliness of any notice to any insurance carrier with respect to any claim or potential claim or otherwiseotherwise (provided, that SpinCo shall not waive any Liability of the Parent Group for the failure of any member of the Parent Group to timely provide notice with respect to any claim or potential claim when requested by any member of the SpinCo Group).
Appears in 2 contracts
Samples: Separation and Distribution Agreement (Consensus Cloud Solutions, Inc.), Separation and Distribution Agreement (Consensus Cloud Solutions, Inc.)
Insurance Matters. (a) Parent In accordance with the Transition Services Agreement, until June 30, 2015, to the extent permitted by applicable Law, Vornado and SpinCo agree to cooperate in good faith to provide for an orderly transition VRLP shall, and shall cause the relevant members of the Vornado Group to, maintain the insurance coverage from applicable to the date hereof through UE Business pursuant to the terms and conditions and coverages of the existing insurance policies of the Vornado Group in effect as of the Effective Time. In ; provided, however, that in no event shall ParentVornado, any other member of the Parent Vornado Group or any Parent Vornado Indemnitee have any Liability or obligation whatsoever to any member of the SpinCo UE Group in the event that any (i) insurance policy or other contract or policy of insurance policy related contract shall be terminated or otherwise cease to be in effect for any reason, shall be unavailable or inadequate to cover any Liability of any member of the SpinCo UE Group for any reason whatsoever or shall not be cancelled, not renewed or not extended with respect to the UE Business beyond the current expiration date. With respect to each insurance policy, the “Insurance Termination Date” shall be June 30, 2015, or such earlier date or (ii) as of which the UE Business ceases to be covered by the insurance policies of the Vornado Group in effect as of the Effective Time in accordance with this Section 5.1(a). Prior to the Insurance Termination Date, Vornado and UE shall discuss in good faith whether to continue any insurer declinesinsurance coverages beyond the Insurance Termination Date and shall cooperate in good faith to provide for an orderly transition of insurance coverage following the Insurance Termination Date; provided, denieshowever, delays or obstructs that Vornado shall not be required to continue any claim paymentsuch insurance coverages beyond the Insurance Termination Date.
(b) From and after the Effective Time, SpinCo, any member of the SpinCo Group or any of their respective employees (including former or inactive employees) shall cease to be insured by, shall have no access or availability to or under, shall not be entitled to make claims on or under and shall not be entitled to claim benefits from or seek coverage under, and shall not have any rights to or under, any of Parent’s or any member of the Parent Group’s insurance policies or any of their respective self-insured programs in place prior to the Effective Time. With respect to claims on or under the policies provided on Schedule 5.1(b) (collectively, the “Designated Policies”) SpinCo:
(i) shall notify Parent, as promptly as practicable, of any incident, circumstance or occurrence that may lead to a claim made by Parent or any member of the Parent Group under a Designated Policy;
(ii) shall, and shall cause the other members of the SpinCo Group to, at SpinCo’s sole cost and expense, cooperate with and assist Parent and the members of the Parent Group and share such information as is necessary in order to permit Parent and the members of the Parent Group to manage and conduct the insurance matters contemplated by this Section 5.1, including with respect to any claims by Parent or any member of the Parent Group under any Designated Policy; and
(iii) shall exclusively bear (and neither Parent nor any members of the Parent Group shall have any obligation to repay or reimburse SpinCo or any member of the SpinCo Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts (including where any insurer declines, denies, delays or obstructs any claim payment) of all claims made with respect to any losses, damages and Liability incurred by any member of the SpinCo UE Group prior to the Insurance Termination Date, Vornado will provide UE with access to, and UE may, upon ten (10) days’ prior written notice to Vornado, make claims under, Vornado’s third-party insurance policies in place prior to the Insurance Termination Date and Vornado’s historical policies of insurance, but solely to the extent that such policies provided coverage for members of the UE Group prior to the Insurance Termination Date; provided that such access to, and the right to make claims under, such insurance policies, shall be subject to the terms and conditions of such insurance policies, including any limits on coverage or scope, any deductibles and other fees and expenses, and shall be subject to the following additional conditions:
(i) UE shall report any claim to Vornado, as promptly as practicable, and in any event in sufficient time so that such claim may be made in accordance with Vornado’s claim reporting procedures in effect immediately prior to the Effective Time (or in accordance with any modifications to such procedures after the Effective Time communicated by Vornado to UE in writing);
(ii) UE and the members of the UE Group shall exclusively bear and be liable for (and neither Vornado nor any members of the Vornado Group shall have any obligation to repay or reimburse UE or any member of the UE Group for), and shall indemnify, hold harmless and reimburse Vornado and the members of the Vornado Group for, any deductibles, self-insured retention, fees and expenses to the extent resulting from any access to, or any claims made by UE or any other members of the UE Group or otherwise made in respect of losses of the UE Business under, any insurance provided pursuant to this Section 5.1(b), including any indemnity payments, settlements, judgments, legal fees and allocated claims expenses and claim handling fees, whether such claims are made by members of the UE Group, its employees or third Persons; and
(iii) UE shall exclusively bear and be liable for (and neither Vornado nor any members of the Vornado Group shall have any obligation to repay or reimburse UE or any member of the UE Group for) all uninsured, uncovered, unavailable or uncollectible amounts of all such claims made by UE or any member of the UE Group under the Designated Policiespolicies as provided for in this Section 5.1(b). In the event an insurance policy aggregate is exhausted, or believed likely to be exhausted, due to noticed claims, the UE Group, on the one hand, and the Vornado Group, on the other hand, shall be responsible for their pro rata portion of the reinstatement premium, if any, based upon the losses of such Group submitted to Vornado’s insurance carrier(s) (including any submissions prior to the Insurance Termination Date). To the extent that the Vornado Group or the UE Group is allocated more than its pro rata portion of such premium due to the timing of losses submitted to Vornado’s insurance carrier(s), the other party shall promptly pay the first party an amount so that each Group has been properly allocated its pro rata portion of the reinstatement premium. Subject to the following sentence, Vornado may elect not to reinstate the policy aggregate. In the event that, at any time prior to the Insurance Termination Date, Vornado elects not to reinstate the policy aggregate, it shall provide prompt written notice to UE, and UE may direct Vornado in writing to, and Vornado shall, in such case, reinstate the policy aggregate; provided that UE shall be responsible for all reinstatement premiums and other costs associated with such reinstatement.
(c) Except as provided in Section 5.1(b), from and after the Insurance Termination Date, neither UE nor any member of the UE Group shall have any rights to or under any of the insurance policies of Vornado or any other member of the Vornado Group. At the Effective TimeInsurance Termination Date, SpinCo shall UE shall, unless it has obtained the prior written consent of Vornado or VRLP, have in effect all insurance programs required to comply with SpinCoUE’s contractual obligations and such other Policies insurance policies required by Law or as reasonably necessary or appropriate for companies operating a business similar to SpinCoUE’s. Such insurance programs may include but are not limited to general liability, commercial auto liability, worker’s compensation, employer’s liability, product/completed operations liability, pollution legal liability, surety bonds, professional services liability, property, cargo, employment practices liability, employee dishonesty/crime, directors’ and officers’ liability and fiduciary liability.
(d) Neither SpinCo UE nor any member of the SpinCo UE Group, in connection with any making a claim under any insurance policy of Parent Vornado or any member of the Parent Vornado Group (including the Designated Policies)pursuant to this Section 5.1, shall take any action that would be reasonably likely to (i) have a materially an adverse impact on the then-current relationship between Parent Vornado or any member of the Parent Vornado Group, on the one hand, and the applicable insurance company, on the other hand; (ii) result in the applicable insurance company terminating or materially reducing coverage, or materially increasing the amount of any premium owed by Parent Vornado or any member of the Parent Vornado Group under the applicable insurance policy; or (iii) otherwise compromise, jeopardize or interfere in any material respect with the rights of Parent Vornado or any member of the Parent Vornado Group under the applicable insurance policy.
(e) Parent All payments and reimbursements by UE pursuant to this Section 5.1 will be made within fifteen (15) days after UE’s receipt of an invoice therefor from Vornado. If Vornado incurs costs to enforce UE’s obligations herein, UE agrees to indemnify and hold harmless Vornado for such enforcement costs, including reasonable attorneys’ fees pursuant to Section 4.6(b). Vornado shall retain the exclusive right to control its insurance policies and programs, including the right to exhaust, settle, release, commute, buy-back or otherwise resolve disputes with respect to any of its insurance policies and programs and to amend, modify or waive any rights under any such insurance policies and programs, notwithstanding whether any such policies or programs apply to any UE Liabilities and/or claims UE has made or could make in the future, and no member of the SpinCo UE Group shall erode, exhaust, settle, release, commute, buy-back buyback or otherwise resolve disputes with ParentVornado’s insurers with respect to any of ParentVornado’s insurance policies and programs, or amend, modify or waive any rights under any such insurance policies and programs. SpinCo UE shall cooperate with Parent Vornado and share such information as is reasonably necessary in order to permit Parent Vornado to manage and conduct its insurance matters as Parent it deems appropriate. Each Party and Neither Vornado nor any member of its applicable the members of the Vornado Group has the sole right shall have any obligation to settle or otherwise resolve Third-Party Claims made against it secure extended reporting for any claims under any Liability policies of Vornado or any member of its applicable the Vornado Group covered under an applicable insurance policy. Notwithstanding anything in the foregoing to the contrary, Parent shall have the sole right to settle for any acts or otherwise resolve Third-Party Claims covered under a Designated Policy without the prior written consent of SpinCo unless such settlement (i) involves any admission, finding or determination of wrongdoing or violation of Law omissions by any member of the SpinCo UE Group or (ii) does not provide for a full, unconditional and irrevocable release of incurred prior to the applicable member(s) of the SpinCo Group from all Liability in connection with the Third-Party Claim, in which case Parent shall not settle or otherwise resolve such Third-Party Claims without the prior written consent of SpinCo (which consent may not be unreasonably withheld, delayed or conditioned)Insurance Termination Date.
(f) This Agreement shall not be considered as an attempted assignment of any policy of insurance or as a contract of insurance and shall not be construed to waive any right or remedy of any member of the Parent Vornado Group in respect of any insurance policy or any other contract or policy of insurance.
(g) SpinCo UE does hereby, for itself and each other member of the SpinCo UE Group, agree that no member of the Parent Vornado Group shall have any Liability whatsoever as a result of the insurance policies and practices of Parent Vornado and the members of the Parent Vornado Group as in effect at any time, including as a result of the level or scope of any such insurance, the creditworthiness of any insurance carrier, the terms and conditions of any policy, or the adequacy or timeliness of any notice to any insurance carrier with respect to any claim or potential claim or otherwise.
Appears in 2 contracts
Samples: Separation and Distribution Agreement (Urban Edge Properties), Separation and Distribution Agreement (Urban Edge Properties)
Insurance Matters. (a) Parent and SpinCo agree Remainco shall use reasonable best efforts to cooperate in good faith cause the Spinco Business to provide for continue to be an orderly transition of insurance coverage from insured under the date hereof through Remainco’s Insurance Policies until the Effective Time. In no event shall Parent, any other member of the Parent Group or any Parent Indemnitee have Liability or obligation whatsoever to any member of the SpinCo Group in the event that any (i) insurance policy or insurance policy related contract shall be terminated or otherwise cease to be in effect for any reason, shall be unavailable or inadequate to cover any Liability of any member of the SpinCo Group for any reason whatsoever or shall be cancelled, not renewed or not extended beyond the current expiration date or (ii) any insurer declines, denies, delays or obstructs any claim payment.
(b) From and after the Effective Time, SpinCoexcept as expressly provided herein, any member of the SpinCo Spinco Group or any of their respective employees (including former or inactive employees) and the Spinco Business shall cease to be insured byunder the Remainco Insurance Policies. For the avoidance of doubt, RMT Partner and Spinco shall have no access be responsible for securing all Insurance Policies that RMT Partner considers appropriate for the Spinco Business and the operation thereof by the Spinco Group. Each RMT Partner and Spinco agrees, on behalf of itself and each member of its respective Groups, from and after the Separation Effective Time, not to seek through any means to benefit from and not to assert any right, claim or availability to or underinterest in, shall not be entitled to make claims on or under and shall not be entitled to claim benefits from or seek coverage under, and shall not have any rights to or under, any Insurance Policies of Parent’s or any member of the Parent Remainco Group’s insurance policies , except as permitted under Section 6.1(c).
(c) From and after the Effective Time, for any claim asserted against Spinco, RMT Partner or any other member of the RMT Partner Group or Spinco Group after the Separation Effective Time arising out of any occurrence, claim, loss, injury or damage taking place prior to the Separation Effective Time (“Post-Closing Claims”), each of RMT Partner and Spinco and each other member of their respective self-insured programs Groups may seek coverage under any Remainco Insurance Policies issued by a third party providing coverage on an occurrence basis in place prior to the Separation Effective Time. With respect , including defense and indemnity benefits attributable to claims on or arising from or under such Remainco Insurance Policies under which Spinco or any other member of the Spinco Group is insured (such policies provided on Schedule 5.1(b) (collectivelyor programs, the “Designated Pre-Closing Occurrence-Based Policies”) SpinCo:
for such claims (i) shall notify Parentit being understood that any retrospective premiums, as promptly as practicabledeductibles, retentions or similar self-insured obligations under the Pre-Closing Occurrence-Based Policies arising from any insurance claims by or on behalf of any incident, circumstance or occurrence that may lead to a claim made by Parent or any member of the Parent Spinco Group under the Pre-Closing Occurrence-Based Policies shall be borne by a Designated Policy;
(ii) shall, and shall cause the other members member of the SpinCo Group toRMT Partner Group). From and after the Separation Effective Time, at SpinCo’s sole cost and expenseSpinco, cooperate with and assist Parent and the members RMT Partner or any other member of the Parent RMT Partner Group may submit a direct Post-Closing Claim for coverage under the Pre-Closing Occurrence-Based Policies to the extent permitted under the applicable Remainco Insurance Policy (provided that, Spinco shall provide Remainco a copy of such claim promptly following submission to the applicable insurer and share thereafter promptly provide reasonable details of all communications from and to such information as is necessary in order to permit Parent and the members of the Parent Group to manage and conduct the insurance matters contemplated by this Section 5.1, including insurer with respect to any claims by Parent such claim). In addition, to the extent Spinco, RMT Partner or any other member of each of their respective Groups requests, Remainco will (or will cause the Parent applicable Remainco Group member) to submit in its name a Post-Closing Claim for coverage under any Designated Policy; and
(iii) shall exclusively bear (and neither Parent nor any members the Pre-Closing Occurrence-Based Policies on behalf of the Parent Group shall have any obligation to repay or reimburse SpinCo Spinco, RMT Partner or any other member of their respective Groups. In either such event, Remainco or the SpinCo applicable Remainco Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts (including where any insurer declines, denies, delays or obstructs any claim payment) of all claims made with respect to any losses, damages and Liability incurred by any member of the SpinCo Group prior to the Effective Time under the Designated Policies.
(c) At the Effective Time, SpinCo shall have in effect all insurance programs required to comply with SpinCo’s contractual obligations and such other Policies required by Law or as reasonably necessary or appropriate for companies operating a business similar to SpinCo’s.
(d) Neither SpinCo nor any member of the SpinCo Group, in connection with any claim under any insurance policy of Parent or any member of the Parent Group (including the Designated Policies), shall take any action that would be reasonably likely to (i) have a materially adverse impact on the then-current relationship between Parent or any member of the Parent Groupmember, on the one hand, and RMT Partner or such other members of the applicable insurance companyRMT Partner Group, on the other hand; (ii) result in , shall reasonably cooperate with one another and Remainco will not and will not permit the applicable insurance company terminating or materially reducing coverage, or materially increasing the amount of any premium owed by Parent or any Remainco Group member of the Parent Group under the applicable insurance policy; or (iii) otherwise compromise, jeopardize or interfere in any material respect with the rights of Parent or any member of the Parent Group under the applicable insurance policy.
(e) Parent shall retain the exclusive right to control its insurance policies and programs, including the right to exhaust, settle, release, commute, buy-back or otherwise resolve disputes with respect to any of its insurance policies and programs and to amend, modify or waive any rights under any such insurance policies and programs and no member of the SpinCo Group shall erode, exhaust, settle, release, commute, buy-back or otherwise resolve disputes with Parent’s insurers with respect to any of Parent’s insurance policies and programs, or amend, modify or waive any rights under any such insurance policies and programs. SpinCo shall cooperate with Parent and share such information as is necessary in order to permit Parent to manage and conduct its insurance matters as Parent deems appropriate. Each Party and any member of its applicable Group has the sole right to settle or otherwise resolve Thirdcompromise any such Post-Party Claims made against it or any member of its applicable Group covered under an applicable insurance policy. Notwithstanding anything in the foregoing to the contrary, Parent shall have the sole right to settle or otherwise resolve Third-Party Claims covered under a Designated Policy Closing Claim without the prior written consent of SpinCo unless RMT Partner. RMT Partner shall reimburse Remainco and the other Remainco Group members for any cost or expenses incurred by it in such settlement submission of a claim. In no event will Remainco be obligated to initiate coverage litigation, other than any such litigation of which RMT Partner bears the cost and expense. The Parties shall reasonably cooperate on aspects of insurance coverage litigation for a Post-Closing Claim involving with Pre-Closing Occurrence-Based Policies. In the event that a Post-Closing Claim relates to the same occurrence for which Remainco or its Subsidiaries is seeking coverage under Pre-Closing Occurrence-Based Policies, and the limits under an applicable Pre-Closing Occurrence-Based Policy are not sufficient to fund all covered claims of Spinco, RMT Partner or any other member of the RMT Partner Group (ias applicable) involves and Remainco or its Subsidiaries (as applicable), amounts due under such a Pre-Closing Occurrence-Based Policy shall be paid to the respective Entities in proportion to the amounts which otherwise would be due were the limits of liability infinite. If so requested by Remainco, Spinco shall promptly enter into assumption agreements (and provide for letters of credit or other collateral arrangements as required by such assumption agreements), required by any admissioninsurers under such Pre-Closing Occurrence-Based Policies for the purpose of transferring, finding or determination acknowledging and accepting the transfer of, the liabilities and obligations of wrongdoing Remainco with respect to the Pre-Closing Occurrence-Based Policies to the extent related to the Spinco Business, including all liabilities with respect to the payment, reimbursement and indemnification obligations for losses, deductibles, retrospective premiums, retained amounts, administration, allocated loss adjustment expenses and the provision of collateral. To the extent any such assumption agreements contemplated by the preceding sentence are entered into, and Remainco actually receives a refund of premium as a result of Spinco assuming the applicable portion of the polic(ies) as between Remainco, Spinco and the applicable insurer, Remainco shall offset against the amounts due from Spinco in respect of Spinco’s portion of any Pre-Closing Occurrence-Based Policies the amount of such premium refund actually received.
(d) Nothing in this Section 6.1 will be construed to alter or violation limit in any way the indemnity obligations of Law by the Parties, including those in this Agreement or any other Ancillary Agreement.
(e) Nothing in Section 6.1 shall prevent any member of the SpinCo Group or (ii) does not provide for a full, unconditional and irrevocable release of the applicable member(s) of the SpinCo Remainco Group from all Liability accessing, eroding, exhausting or otherwise taking any action in connection with the Third-Party Claima Remainco Insurance Policy; provided, in which case Parent however that Remainco shall not settle amend, commute or otherwise resolve such Thirdcancel any Pre-Party Claims without Closing Occurrence-Based Policy in a manner that would adversely impact the prior written consent rights of SpinCo (which consent may not be unreasonably withheldRMT Partner, delayed Spinco or conditioned)any member of their respective Groups under this Section 6.1.
(f) This Agreement From and after the Effective Time, each Party shall not be considered as an attempted assignment of financially responsible for Self-Insurance obligations for any policy of and all insurance or as a contract of insurance and shall not be construed to waive any right or remedy of any member of coverage claims for which the Parent Group in respect of any insurance policy or any other contract or policy of insuranceParty bears responsibility for the underlying claim, including without limitation Post-Closing Covered Claims.
(g) SpinCo does herebyAt Remainco’s sole discretion, for itself Remainco shall either (i) maintain the directors’ and each other member officers’ liability insurance policies, fiduciary liability insurance policies or employment practices liability insurance policies covering any directors and officers, fiduciaries or employees of the SpinCo GroupSpinco Group in effect immediately prior to the Separation Effective Time for a period of six (6) years following the Separation Effective Time or (ii) Remainco shall procure, agree that no member at Remainco’s sole cost and expense, a prepaid, non-cancelable “tail” insurance policy for a period of not less than six (6) years following the Separation Effective Time, in either case contemplated by clause (i) or (ii), containing terms not less favorable than the terms of directors’ and officers’ liability insurance, fiduciary liability insurance or employment practices liability insurance covering any directors and officers, fiduciaries or employees of the Parent Spinco Group shall have any Liability whatsoever as a result of who are covered by the directors’ and officers’ liability insurance, fiduciary liability insurance or employment practices liability insurance policies of Remainco and practices of Parent and its Subsidiaries (including the members of the Parent Group as in effect at any time, including as a result of the level or scope of any such insurance, the creditworthiness of any insurance carrier, the terms and conditions of any policy, or the adequacy or timeliness of any notice to any insurance carrier Spinco Group) with respect to matters existing or occurring at or prior to the Effective Time. If any claim is asserted or potential made within such six (6)-year period, then any insurance required to be maintained under this Section 6.1(g) shall be continued in respect of such claim or otherwiseuntil the final disposition thereof.
Appears in 2 contracts
Samples: Separation and Distribution Agreement (Regal Beloit Corp), Separation and Distribution Agreement (Rexnord Corp)
Insurance Matters. (a) Parent Tech and SpinCo Fuels agree to cooperate in good faith to provide for an orderly transition of insurance coverage from the date hereof Execution Date through the Effective Time. In no event shall ParentTech, any other member of the Parent Tech Group or any Parent Tech Indemnitee have any Liability or obligation whatsoever to any member of the SpinCo Fuels Group in the event that any (i) insurance policy or other contract or policy of insurance policy related contract shall be terminated or otherwise cease to be in effect for any reason, shall be unavailable or inadequate to cover any Liability of any member of the SpinCo Fuels Group for any reason whatsoever or shall not be cancelled, not renewed or not extended beyond the current expiration date or (ii) any insurer declines, denies, delays or obstructs any claim paymentdate.
(b) From and after the Effective Time, SpinCo, any member of the SpinCo Group or any of their respective employees (including former or inactive employees) shall cease to be insured by, shall have no access or availability to or under, shall not be entitled to make claims on or under and shall not be entitled to claim benefits from or seek coverage under, and shall not have any rights to or under, any of Parent’s or any member of the Parent Group’s insurance policies or any of their respective self-insured programs in place prior to the Effective Time. With respect to claims on or under the policies provided on Schedule 5.1(b) (collectively, the “Designated Policies”) SpinCo:
(i) shall notify Parent, as promptly as practicable, of any incident, circumstance or occurrence that may lead to a claim made by Parent or any member of the Parent Group under a Designated Policy;
(ii) shall, and shall cause the other members of the SpinCo Group to, at SpinCo’s sole cost and expense, cooperate with and assist Parent and the members of the Parent Group and share such information as is necessary in order to permit Parent and the members of the Parent Group to manage and conduct the insurance matters contemplated by this Section 5.1, including with respect to any claims by Parent or any member of the Parent Group under any Designated Policy; and
(iii) shall exclusively bear (and neither Parent nor any members of the Parent Group shall have any obligation to repay or reimburse SpinCo or any member of the SpinCo Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts (including where any insurer declines, denies, delays or obstructs any claim payment) of all claims made with respect to any losses, damages and Liability incurred by any member of the SpinCo Group Fuels Group, or arising out of facts, events or circumstances occurring, prior to the Effective Time, Tech will provide Fuels with access to, and Fuels may, upon ten (10) days’ prior written notice to Tech, make claims under, Tech’s third-party insurance policies in place immediately prior to the Effective Time and Tech’s historical third-party policies of insurance, but solely to the extent that such policies provided coverage for Fuels Liabilities or Liabilities arising from or in connection with actions, inactions, events, omissions, conditions, facts or circumstances occurring or existing prior to the Effective Time, in each case relating to, arising out of or resulting from the Fuels Business, the Fuels Assets or the Fuels Liabilities; provided that such access to, and the right to make claims under, such insurance policies shall be subject to the terms and conditions of such insurance policies, including any limits on coverage or scope, any deductibles, self-insured retentions, loss reimbursements and other fees and expenses, and any retrospectively rated or other premium adjustments, resulting from such losses, damages or Liability. Any deductible, loss reimbursement, other fee or expense, or retrospectively rated or other premium adjustment, resulting from such losses, damages or Liability shall be Fuels’ sole responsibility. Fuels’ access shall be subject to the following additional conditions:
(i) Fuels shall report any claim to Tech, as promptly as practicable, and in any event in sufficient time so that such claim may be made in accordance with Tech’s claim reporting procedures in effect immediately prior to the Effective Time (or in accordance with any modifications to such procedures after the Effective Time communicated by Tech to Fuels in writing);
(ii) Fuels may, in its sole discretion, report such claim to the insurers on its and/or Fuels’ behalf with a request that the insurers defend and indemnify it and/or Fuels;
(iii) Fuels and the members of the Fuels Group shall indemnify, hold harmless and reimburse Tech and the members of the Tech Group for any fees and expenses incurred by Tech or any members of the Tech Group to the extent resulting from any access to, any claims made by Fuels or any other members of the Fuels Group under, any insurance provided pursuant to this Section 4.01(b), including any indemnity payments, settlements, judgments, legal fees and allocated claim or loss adjusting expenses and claim handling fees, whether such claims are made by Fuels, its employees or Third Parties; and
(iv) Fuels shall exclusively bear (and neither Tech nor any members of the Tech Group shall have any obligation to repay or reimburse Fuels or any member of the Fuels Group for) and shall be liable for all uninsured, uncovered, unavailable or uncollectible amounts of all such claims made by Fuels or any member of the Fuels Group under the Designated Policiespolicies as provided for in this Section 4.01(b).
(c) At In the Effective Time, SpinCo shall have in effect all insurance programs required to comply with SpinCo’s contractual obligations and such other Policies required by Law or as reasonably necessary or appropriate for companies operating a business similar to SpinCo’s.
(d) Neither SpinCo nor event that any member of the SpinCo GroupTech Group incurs any losses, damages or Liability prior to or in connection with any claim under any insurance policy respect of Parent or any the period prior to the Effective Time for which such member of the Parent Tech Group (including the Designated Policies), shall take any action that would be reasonably likely is entitled to (i) have a materially adverse impact on the thencoverage under Fuels’ third-current relationship between Parent or any member of the Parent Group, on the one hand, and the applicable party insurance company, on the other hand; (ii) result in the applicable insurance company terminating or materially reducing coverage, or materially increasing the amount of any premium owed by Parent or any member of the Parent Group under the applicable insurance policy; or (iii) otherwise compromise, jeopardize or interfere in any material respect with the rights of Parent or any member of the Parent Group under the applicable insurance policy.
(e) Parent shall retain the exclusive right to control its insurance policies and programs, including the right to exhaust, settle, release, commute, buy-back or otherwise resolve disputes with respect to any of its insurance policies and programs and to amend, modify or waive any rights under any such insurance policies and programs and no member of the SpinCo Group shall erode, exhaust, settle, release, commute, buy-back or otherwise resolve disputes with Parent’s insurers with respect to any of Parent’s insurance policies and programs, or amend, modify or waive any rights under any such insurance policies and programs. SpinCo shall cooperate with Parent and share such information as is necessary in order to permit Parent to manage and conduct its insurance matters as Parent deems appropriate. Each Party and any member of its applicable Group has the sole right to settle or otherwise resolve Third-Party Claims made against it or any member of its applicable Group covered under an applicable insurance policy. Notwithstanding anything in the foregoing to the contrary, Parent shall have the sole right to settle or otherwise resolve Third-Party Claims covered under a Designated Policy without the prior written consent of SpinCo unless such settlement (i) involves any admission, finding or determination of wrongdoing or violation of Law by any member of the SpinCo Group or (ii) does not provide for a full, unconditional and irrevocable release of the applicable member(s) of the SpinCo Group from all Liability in connection with the Third-Party Claim, in which case Parent shall not settle or otherwise resolve such Third-Party Claims without the prior written consent of SpinCo (which consent may not be unreasonably withheld, delayed or conditioned).
(f) This Agreement shall not be considered as an attempted assignment of any policy of insurance or as a contract of insurance and shall not be construed to waive any right or remedy of any member of the Parent Group in respect of any insurance policy or any other contract or policy of insurance.
(g) SpinCo does hereby, for itself and each other member of the SpinCo Group, agree that no member of the Parent Group shall have any Liability whatsoever as a result of the insurance policies and practices of Parent and the members of the Parent Group as in effect at any time, including as a result of the level or scope of any such insurancepolicies, the creditworthiness of any insurance carriersame process pursuant to this Section 4.01(b) shall apply, the terms substituting “Tech” for “Fuels” and conditions of any policy, or the adequacy or timeliness of any notice to any insurance carrier with respect to any claim or potential claim or otherwise“Fuels” for “Tech.”
Appears in 2 contracts
Samples: Master Distribution Agreement (Taronis Fuels, Inc.), Master Distribution Agreement (Taronis Fuels, Inc.)
Insurance Matters. (a) Parent and SpinCo agree to cooperate in good faith to provide for an orderly transition of insurance coverage from the date hereof through the Effective TimeDistribution Date. In no event shall Parent, any other member of the Parent Group or any Parent Indemnitee have Liability or obligation whatsoever to any member of the SpinCo Group in arising from the event fact that any (i) insurance policy or insurance policy related contract shall be terminated or otherwise cease to be in effect for any reason, shall be unavailable or inadequate to cover any Liability of any member of the SpinCo Group for any reason whatsoever or shall not be cancelled, not renewed or not extended beyond the current expiration date or (ii) any insurer declines, denies, delays or obstructs any claim paymentdate.
(b) From Parent and SpinCo acknowledge that, prior to the Distribution Date, Parent intends to take such action, in its sole discretion as it may deem necessary or desirable, to remove the members of the SpinCo Group and their respective employees, officers and directors as insured parties, or limit the coverage provided to such parties, under some or all Policies issued to the Parent Group. The date(s) on which Parent removes the members of the SpinCo Group and their respective employees, officers and directors as insured parties, or limits the coverage provided to such parties, under a particular Policy or Policies shall constitute the “Insurance Termination Time” for such Policy or Policies. SpinCo further acknowledges and agrees that, from and after the Effective Timeapplicable Insurance Termination Time for a particular Policy, SpinCo, neither SpinCo nor any member of the SpinCo Group or any of their respective employees (including former or inactive employees) shall cease to be insured by, shall have no access or availability to or under, shall not be entitled to make claims on or under and shall not be entitled to claim benefits from or seek coverage under, and shall not have any rights to or underunder such Policy other than as expressly provided in Section 6.7(d) and Section 6.7(e).
(c) At the applicable Insurance Termination Time, SpinCo shall use commercially reasonable efforts to place in effect all insurance programs required to comply with SpinCo’s contractual obligations and such other Policies required by Law or as reasonably necessary or appropriate for companies operating a business similar to SpinCo’s. With respect to such provided policies, if any, procured by SpinCo for the sole benefit of the SpinCo Group (“SpinCo Policies”), SpinCo shall use commercially reasonable efforts to continue to maintain such insurance coverage through the Distribution Date in a manner no less favorable than currently provided.
(d) From and after the applicable Insurance Termination Time for a particular Policy, with respect to any of Parent’s or losses, damages and Liability incurred by any member of the SpinCo Group prior to such Insurance Termination Time only, Parent will provide SpinCo with access to, and SpinCo may make claims under, such Parent Group Policy in place immediately prior to the applicable Insurance Termination Time (and any extended reporting periods for claims-made Policies) and the Parent Group’s insurance policies historical Policies, but solely to the extent that such Policies provided coverage for members of the SpinCo Group or the SpinCo Business prior to the applicable Insurance Termination Time; provided, that such access to, and the right to make claims under, such Policies shall be subject to the terms, conditions and exclusions of such Policies, including but not limited to any of their respective limits on coverage or scope, any deductibles, self-insured programs in place prior retentions and other fees and expenses, and shall be subject to the Effective Time. With respect to claims on or under the policies provided on Schedule 5.1(b) (collectively, the “Designated Policies”) SpinCofollowing additional conditions:
(i) SpinCo shall notify Parent, as promptly as practicable, of any incident, circumstance or occurrence that may lead to a claim made by Parent or any member of the Parent SpinCo Group under a Designated Policypursuant to this Section 6.7(d);
(ii) shall, SpinCo and shall cause the other members of the SpinCo Group toshall indemnify, at SpinCo’s sole cost hold harmless and expense, cooperate with and assist reimburse Parent and the members of the Parent Group for any deductibles, self-insured retention, fees, indemnity payments, settlements, judgments, legal fees, allocated claims expenses and share such information as is necessary in order to permit claim handling fees, retrospective premiums, captive reinsurance, matching deductibles, collateral obligations, indemnity agreements, and other expenses incurred by Parent and the or any members of the Parent Group to manage and conduct the extent resulting from any access to, or any claims made by SpinCo or any other members of the SpinCo Group under, any insurance matters contemplated by (including any self-insured program) provided pursuant to this Section 5.16.7(d), including with respect to any whether such claims are made by Parent SpinCo, its employees or any member third Persons;
(iii) SpinCo and the members of the Parent SpinCo Group under any Designated Policyshall comply fully with the Assumption and Allocation Agreement; and
(iiiiv) SpinCo shall exclusively bear (and neither Parent nor any members of the Parent Group shall have any obligation to repay or reimburse SpinCo or any member of the SpinCo Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts (including where any insurer declines, denies, delays or obstructs any claim payment) of all such claims made with respect to any losses, damages and Liability incurred by SpinCo or any member of the SpinCo Group under the Policies as provided for in this Section 6.7(d). In the event an insurance policy aggregate is exhausted, or believed likely to be exhausted, due to noticed claims, the SpinCo Group, on the one hand, the Parent Group, on the other hand, shall be responsible for their pro rata portion of the reinstatement premium, if any, based upon the losses of such Group submitted to Parent’s insurance carrier(s) (including any submissions prior to the Effective applicable Insurance Termination Time). To the extent that the Parent Group or the SpinCo Group is allocated more than its pro rata portion of such premium due to the timing of losses submitted to Parent’s insurance carrier(s), the other Party shall promptly pay the first Party an amount such that each Group has been properly allocated its pro rata portion of the reinstatement premium. Subject to the following sentence, a Party may elect not to reinstate the policy aggregate. In the event that a Party elects not to reinstate the policy aggregate, it shall provide prompt written notice to the other Party. A Party which elects to reinstate the policy aggregate shall be responsible for all reinstatement premiums and other costs associated with such reinstatement. In the event that any member of the Parent Group incurs any losses, damages or Liability prior to or in respect of the period prior to the applicable Insurance Termination Time for which such member of the Parent Group is entitled to coverage under SpinCo’s Policies, the Designated Policiessame process pursuant to this Section 6.7(d) shall apply, substituting “Parent” for “SpinCo” and “SpinCo” for “Parent,” including for purposes of the first sentence of Section 6.7(f).
(ce) At For six (6) years after the Effective Timeapplicable Insurance Termination Time for officers’ and directors’ liability insurance, Parent shall use commercially reasonable efforts to provide officers’ and directors’ liability insurance in respect of (i) acts or omissions occurring at or prior to the applicable Insurance Termination Time for such Policies and (ii) the Separation and the IPO, covering each of the present and former officers and directors of Parent and SpinCo and each of their Subsidiaries currently covered by Parent’s officers’ and directors’ liability insurance policies, on terms with respect to coverage and amount reasonably comparable to those of such policies as are in effect as of the applicable Insurance Termination Time with respect to Parent’s then-current officers and directors, to the extent reasonably available in the commercial insurance market, with sixty-seven percent (67%) of the cost of such insurance deemed a Parent Liability and thirty-three percent (33%) of the cost of such insurance deemed a SpinCo Liability. Parent and SpinCo shall have in effect all insurance programs required to comply with SpinCo’s contractual obligations and such other all conditions in Section 6.7(d) with respect to claims made under the Policies required by Law or as reasonably necessary or appropriate for companies operating a business similar to SpinCo’sreferenced in this Section 6.7(e).
(df) Neither SpinCo nor any member of the SpinCo Group, in connection with any making a claim under any insurance policy of Parent or any member of the Parent Group (including the Designated Policies)pursuant to this Section 6.7, shall take any action that would be reasonably likely to (i) have a materially material and adverse impact on the then-current relationship between Parent or any member of the Parent Group, on the one hand, and the applicable insurance company, broker or third-party claims administrator, on the other hand; (ii) result in the applicable insurance company terminating or materially reducing coverage, or materially increasing the amount of any premium owed by Parent or any member of the Parent Group under the applicable insurance policy; or (iii) otherwise compromise, jeopardize or interfere in any material respect with the rights of Parent or any member of the Parent Group under the applicable insurance policy.
(eg) All payments and reimbursements by SpinCo pursuant to this Section 6.7 will be made within forty-five (45) days after SpinCo’s receipt of an invoice therefor from Parent, unless otherwise agreed in writing by the Parties. If Parent incurs costs to enforce SpinCo’s obligations herein, SpinCo agrees to indemnify and hold harmless Parent for such enforcement costs, including reasonable attorneys’ fees, pursuant to Section 5.6(b). Parent shall retain the exclusive right to control its insurance policies Policies and programs, including the right to exhaust, settle, release, commute, buy-back or otherwise resolve disputes with respect to any of its insurance policies Policies and programs and to amend, modify or waive any rights under any such insurance policies Policies and programs, notwithstanding whether any such Policies or programs apply to any SpinCo Liabilities and/or claims SpinCo has made or could make in the future, and no member of the SpinCo Group shall erode, exhaust, settle, release, commute, buy-back buyback or otherwise resolve disputes with Parent’s insurers with respect to any of Parent’s insurance policies Policies and programs, or amend, modify or waive any rights under any such insurance policies Policies and programs. SpinCo shall cooperate with Parent and share such information as is reasonably necessary in order to permit Parent to manage and conduct its insurance matters as Parent deems appropriate. Each Neither Parent nor any member of the Parent Group shall have any obligation to secure extended reporting for any claims under any Policies of Parent or any member of the Parent Group for any acts or omissions by any member of the SpinCo Group incurred prior to the applicable Insurance Termination Time. For the avoidance of doubt, each Party and any member of its applicable Group has the sole right to settle or otherwise resolve Third-Party Claims third party claims made against it or any member of its applicable Group covered under an applicable insurance policy. Notwithstanding anything in the foregoing to the contrary, Parent shall have the sole right to settle or otherwise resolve Third-Party Claims covered under a Designated Policy without the prior written consent of SpinCo unless such settlement (i) involves any admission, finding or determination of wrongdoing or violation of Law by any member of the SpinCo Group or (ii) does not provide for a full, unconditional and irrevocable release of the applicable member(s) of the SpinCo Group from all Liability in connection with the Third-Party Claim, in which case Parent shall not settle or otherwise resolve such Third-Party Claims without the prior written consent of SpinCo (which consent may not be unreasonably withheld, delayed or conditioned)Policy.
(fh) This Agreement shall not be considered as an attempted assignment of any policy of insurance or as a contract of insurance and shall not be construed to waive any right or remedy of any member of the Parent Group in respect of any insurance policy or any other contract or policy of insurance.
(gi) SpinCo does hereby, for itself and each other member of the SpinCo Group, agree that no member of the Parent Group shall have any Liability whatsoever as a result of the insurance policies Policies and practices of Parent and the members of the Parent Group as in effect at any time, including as a result of the level or scope of any such insurance, the creditworthiness of any insurance carrier, the terms and conditions of any policy, or the adequacy or timeliness of any notice to any insurance carrier with respect to any claim or potential claim or otherwise.
Appears in 2 contracts
Samples: Master Separation Agreement (Bausch Health Companies Inc.), Master Separation Agreement (Bausch & Lomb Corp)
Insurance Matters. (a) Parent Ventas and SpinCo agree to cooperate in good faith to provide for an orderly transition of insurance coverage from the date hereof through the Effective Time. In no event shall ParentVentas, any other member of the Parent Ventas Group or any Parent Ventas Indemnitee have Liability or obligation whatsoever to any member of the SpinCo Group in the event that any (i) insurance policy or other contract or policy of insurance policy related contract shall be terminated or otherwise cease to be in effect for any reason, shall be unavailable or inadequate to cover any Liability of any member of the SpinCo Group for any reason whatsoever or shall not be cancelled, not renewed or not extended beyond the current expiration date or (ii) any insurer declines, denies, delays or obstructs any claim paymentdate.
(b) From and after the Effective Time, SpinCo, any member of the SpinCo Group or any of their respective employees (including former or inactive employees) shall cease to be insured by, shall have no access or availability to or under, shall not be entitled to make claims on or under and shall not be entitled to claim benefits from or seek coverage under, and shall not have any rights to or under, any of Parent’s or any member of the Parent Group’s insurance policies or any of their respective self-insured programs in place prior to the Effective Time. With respect to claims on or under the policies provided on Schedule 5.1(b) (collectively, the “Designated Policies”) SpinCo:
(i) shall notify Parent, as promptly as practicable, of any incident, circumstance or occurrence that may lead to a claim made by Parent or any member of the Parent Group under a Designated Policy;
(ii) shall, and shall cause the other members of the SpinCo Group to, at SpinCo’s sole cost and expense, cooperate with and assist Parent and the members of the Parent Group and share such information as is necessary in order to permit Parent and the members of the Parent Group to manage and conduct the insurance matters contemplated by this Section 5.1, including with respect to any claims by Parent or any member of the Parent Group under any Designated Policy; and
(iii) shall exclusively bear (and neither Parent nor any members of the Parent Group shall have any obligation to repay or reimburse SpinCo or any member of the SpinCo Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts (including where any insurer declines, denies, delays or obstructs any claim payment) of all claims made with respect to any losses, damages and Liability incurred by any member of the SpinCo Group prior to the Effective Time, Ventas will provide SpinCo with access to, and SpinCo may, upon ten (10) days’ prior written notice to Ventas, make claims under, Ventas’s third-party insurance policies in place immediately prior to the Effective Time and Ventas’s historical policies of insurance, but solely to the extent that such policies provided coverage for members of the SpinCo Group prior to the Effective Time; provided that such access to, and the right to make claims under, such insurance policies, shall be subject to the terms and conditions of such insurance policies, including any limits on coverage or scope, any deductibles and other fees and expenses, and shall be subject to the following additional conditions:
(i) SpinCo shall report any claim to Ventas, as promptly as practicable, and in any event in sufficient time so that such claim may be made in accordance with Ventas’s claim reporting procedures in effect immediately prior to the Effective Time (or in accordance with any modifications to such procedures after the Effective Time communicated by Ventas to SpinCo in writing in advance of any such claim);
(ii) SpinCo and the members of the SpinCo Group shall exclusively bear and be liable for (and neither Ventas nor any members of the Ventas Group shall have any obligation to repay or reimburse SpinCo or any member of the SpinCo Group for), and SpinCo shall indemnify, hold harmless and reimburse Ventas and the members of the Ventas Group for, any deductibles, self-insured retention, fees and expenses incurred by Ventas or any members of the Ventas Group to the extent resulting from any access by SpinCo or any other members of the SpinCo Group to, or any claims made by SpinCo or any other members of the SpinCo Group under, any insurance provided pursuant to this Section 5.1(b), including any indemnity payments, settlements, judgments, legal fees and allocated claims expenses and claim handling fees, whether such claims are made by members of the SpinCo Group, its employees or third Persons; and
(iii) SpinCo shall exclusively bear and be liable for (and neither Ventas nor any members of the Ventas Group shall have any obligation to repay or reimburse SpinCo or any member of the SpinCo Group for), and SpinCo shall indemnify, hold harmless and reimburse Ventas and the members of the Ventas Group for, all uninsured, uncovered, unavailable or uncollectible amounts of all such claims made by SpinCo or any member of the SpinCo Group under the Designated Policiespolicies as provided for in this Section 5.1(b). In the event an insurance policy aggregate is exhausted, or believed likely to be exhausted, due to noticed claims, the SpinCo Group, on the one hand, and the Ventas Group, on the other hand, shall be responsible for their pro rata portion of the reinstatement premium, if any, based upon the losses of such Group submitted to Ventas’s insurance carrier(s) (including any submissions prior to the Effective Time). To the extent that the Ventas Group or the SpinCo Group is allocated more than its pro rata portion of such premium due to the timing of losses submitted to Ventas’s insurance carrier(s), the other party shall promptly pay the first party an amount so that each Group has been properly allocated its pro rata portion of the reinstatement premium. Subject to the following sentence, Ventas may elect not to reinstate the policy aggregate. In the event that Ventas elects not to reinstate the policy aggregate, it shall provide prompt written notice to SpinCo, and SpinCo may direct Ventas in writing to, and Ventas shall, in such case, reinstate the policy aggregate; provided that SpinCo shall be responsible for all reinstatement premiums and other costs associated with such reinstatement.
(iv) In the event that any member of the Ventas Group incurs any losses, damages or Liability prior to or in respect of the period prior to the Effective Time for which such member of the Ventas Group is entitled to coverage under SpinCo’s Third Party insurance policies, the same process pursuant to this Section 5.1(b) shall apply, substituting “Ventas” for “SpinCo” and “SpinCo” for “Ventas.”
(c) Except as provided in Section 5.1(b), from and after the Effective Time, neither SpinCo nor any member of the SpinCo Group shall have any rights to or under any of the insurance policies of Ventas or any other member of the Ventas Group. At the Effective Time, SpinCo shall have in effect all insurance programs required to comply with SpinCo’s contractual obligations and such other Policies insurance policies required by Law or as reasonably necessary or appropriate for companies operating a business similar to SpinCo’s. Such insurance programs may include general liability, commercial auto liability, workers’ compensation, employer’s liability, product liability, professional services liability, property, cargo, employment practices liability, employee dishonesty/crime, directors’ and officers’ liability and fiduciary liability.
(d) Neither SpinCo nor any member of the SpinCo Group, in connection with any making a claim under any insurance policy of Parent Ventas or any member of the Parent Group (including Ventas Group, nor Ventas nor any member of the Designated Policies)Ventas Group, in connection with making a claim under any insurance policy of SpinCo or any member of the SpinCo Group, in either case pursuant to this Section 5.1, shall take any action that would be reasonably likely to (i) have a materially an adverse impact on the then-current relationship between Parent the other Party or any member of the Parent its Group, on the one hand, and the applicable insurance company, on the other hand; (ii) result in the applicable insurance company terminating or materially reducing coverage, or materially increasing the amount of any premium owed by Parent the other Party or any member of the Parent its Group under the applicable insurance policy; or (iii) otherwise compromise, jeopardize or interfere in any material respect with the rights of Parent the other Party or any member of the Parent its Group under the applicable insurance policy.
(e) Parent All payments and reimbursements by a Party pursuant to this Section 5.1 (the “Claiming Party”) will be made within thirty (30) days after the Claiming Party’s receipt of an invoice therefor from the other Party (the “Non-Claiming Party”). If the Non-Claiming Party incurs costs to enforce the Claiming Party’s obligations herein, the Claiming Party agrees to indemnify and hold harmless the Non-Claiming Party for such enforcement costs, including reasonable attorneys’ fees pursuant to Section 4.6(b). The Non-Claiming Party shall retain the exclusive right to control its insurance policies and programs, including the right to exhaust, settle, release, commute, buy-back or otherwise resolve disputes with respect to any of its insurance policies and programs and to amend, modify or waive any rights under any such insurance policies and programs, notwithstanding whether any such policies or programs apply to any Claiming Party Liabilities and/or claims the Claiming Party has made or could make in the future, and no member of the SpinCo Claiming Party’s Group shall erode, exhaust, settle, release, commute, buy-back buyback or otherwise resolve disputes with Parentthe Non-Claiming Party’s insurers with respect to any of Parentthe Non-Claiming Party’s insurance policies and programs, or amend, modify or waive any rights under any such insurance policies and programs. SpinCo The Claiming Party shall cooperate with Parent the Non-Claiming Party and share such information as is reasonably necessary in order to permit Parent the Non-Claiming Party to manage and conduct its insurance matters as Parent it deems appropriate. Each Neither the Non-Claiming Party and nor any member of its applicable the members of the Non-Claiming Party’s Group has shall have any obligation to secure extended reporting for any claims under any Liability policies of the sole right to settle or otherwise resolve ThirdNon-Claiming Party Claims made against it or any member of its applicable the Non-Claiming Party’s Group covered under an applicable insurance policy. Notwithstanding anything in the foregoing to the contrary, Parent shall have the sole right to settle for any acts or otherwise resolve Third-Party Claims covered under a Designated Policy without the prior written consent of SpinCo unless such settlement (i) involves any admission, finding or determination of wrongdoing or violation of Law omissions by any member of the SpinCo Claiming Party’s Group or (ii) does not provide for a full, unconditional and irrevocable release of incurred prior to the applicable member(s) of the SpinCo Group from all Liability in connection with the Third-Party Claim, in which case Parent shall not settle or otherwise resolve such Third-Party Claims without the prior written consent of SpinCo (which consent may not be unreasonably withheld, delayed or conditioned)Effective Time.
(f) This Agreement shall not be considered as an attempted assignment of any policy of insurance or as a contract of insurance and shall not be construed to waive any right or remedy of any member of the Parent Ventas Group in respect of any insurance policy or any other contract or policy of insurance.
(g) SpinCo does hereby, for itself and each other member of the SpinCo Group, agree that no member of the Parent Ventas Group shall have any Liability whatsoever as a result of the insurance policies and practices of Parent Ventas and the members of the Parent Ventas Group as in effect at any time, including as a result of the level or scope of any such insurance, the creditworthiness of any insurance carrier, the terms and conditions of any policy, or the adequacy or timeliness of any notice to any insurance carrier with respect to any claim or potential claim or otherwise.
Appears in 2 contracts
Samples: Separation and Distribution Agreement (Care Capital Properties, Inc.), Separation and Distribution Agreement (Ventas Inc)
Insurance Matters. (a) Parent and SpinCo agree to cooperate in good faith to provide for an orderly transition of insurance coverage from the date hereof through the Effective Time. In no event shall Parent, any other member of the Parent Group or any Parent Indemnitee have Liability or obligation whatsoever to any member of the SpinCo Group in the event that any (i) insurance policy or insurance policy related contract shall be terminated or otherwise cease to be in effect for any reason, shall be unavailable or inadequate to cover any Liability of any member of the SpinCo Group for any reason whatsoever or shall not be cancelled, not renewed or not extended beyond the current expiration date or (ii) any insurer declines, denies, delays or obstructs any claim paymentdate.
(b) From Except as provided on Schedule 5.1(b), from and after the Effective Time, SpinCowith respect to any losses, damages and Liability incurred by any member of the SpinCo Group or any of their respective employees (including former or inactive employees) shall cease to be insured by, shall have no access or availability to or under, shall not be entitled to make claims on or under and shall not be entitled to claim benefits from or seek coverage under, and shall not have any rights to or under, any of Parent’s or any member of the Parent Group’s insurance policies or any of their respective self-insured programs in place prior to the Effective Time. With respect , Parent will provide SpinCo with access to, and SpinCo may make claims under, Parent’s insurance policies in place immediately prior to the Effective Time (and any extended reporting for claims on or under made policies) and Parent’s historical policies of insurance, but solely to the extent that such policies provided coverage for members of the SpinCo Group or the SpinCo Business prior to the Effective Time; provided that such access to, and the right to make claims under, such insurance policies, shall be subject to the terms, conditions and exclusions of such insurance policies, including but not limited to any limits on Schedule 5.1(b) (collectivelycoverage or scope, any deductibles, self-insured retentions and other fees and expenses, and shall be subject to the “Designated Policies”) SpinCofollowing additional conditions:
(i) SpinCo shall notify Parent, as promptly as practicable, of any incident, circumstance or occurrence that may lead to a claim made by Parent or any member of the Parent Group under a Designated PolicySpinCo pursuant to this Section 5.1(b);
(ii) shall, SpinCo and shall cause the other members of the SpinCo Group toshall indemnify, at SpinCo’s sole cost hold harmless and expense, cooperate with and assist reimburse Parent and the members of the Parent Group for any deductibles, self-insured retention, fees, indemnity payments, settlements, judgments, legal fees, allocated claims expenses and share such information as is necessary in order to permit claim handling fees, and other expenses incurred by Parent and the or any members of the Parent Group to manage and conduct the extent resulting from any access to, or any claims made by SpinCo or any other members of the SpinCo Group under, any insurance matters contemplated by provided pursuant to this Section 5.15.1(b), including with respect to any whether such claims are made by Parent SpinCo, its employees or any member of the Parent Group under any Designated Policythird Persons; and
(iii) SpinCo shall exclusively bear (and neither Parent nor any members of the Parent Group shall have any obligation to repay or reimburse SpinCo or any member of the SpinCo Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts (including where any insurer declines, denies, delays or obstructs any claim payment) of all such claims made with respect to any losses, damages and Liability incurred by SpinCo or any member of the SpinCo Group under the policies as provided for in this Section 5.1(b). In the event an insurance policy aggregate is exhausted, or believed likely to be exhausted, due to noticed claims, the SpinCo Group, on the one hand, and the Parent Group, on the other hand, shall be responsible for their pro rata portion of the reinstatement premium, if any, based upon the losses of such Group submitted to Parent’s insurance carrier(s) (including any submissions prior to the Effective Time). To the extent that the Parent Group or the SpinCo Group is allocated more than its pro rata portion of such premium due to the timing of losses submitted to Parent’s insurance carrier(s), the other party shall promptly pay the first party an amount so that each Group has been properly allocated its pro rata portion of the reinstatement premium. Subject to the following sentence, a Party may elect not to reinstate the policy aggregate. In the event that a Party elects not to reinstate the policy aggregate, it shall provide prompt written notice to the other Party. A Party which elects to reinstate the policy aggregate shall be responsible for all reinstatement premiums and other costs associated with such reinstatement. In the event that any member of the Parent Group incurs any losses, damages or Liability prior to or in respect of the period prior to the Effective Time for which such member of the Parent Group is entitled to coverage under SpinCo’s third-party insurance policies, the Designated Policiessame process pursuant to this Section 5.1(b) shall apply, substituting “Parent” for “SpinCo” and “SpinCo” for “Parent”, including for purposes of the first sentence of Section 5.1(e).
(c) Except as provided in Section 5.1(b), from and after the Effective Time, neither SpinCo nor any member of the SpinCo Group shall have any rights to or under any of the insurance policies of Parent or any other member of the Parent Group. At the Effective Time, SpinCo shall have in effect all insurance programs required to comply with SpinCo’s contractual obligations and such other Policies required by Law or as reasonably necessary or appropriate for companies operating a business similar to SpinCo’s.
(d) Neither SpinCo nor any member of the SpinCo Group, in connection with any making a claim under any insurance policy of Parent or any member of the Parent Group (including the Designated Policies)pursuant to this Section 5.1, shall take any action that would be reasonably likely to (i) have a materially material and adverse impact on the then-current relationship between Parent or any member of the Parent Group, on the one hand, and the applicable insurance company, on the other hand; (ii) result in the applicable insurance company terminating or materially reducing coverage, or materially increasing the amount of any premium owed by Parent or any member of the Parent Group under the applicable insurance policy; or (iii) otherwise compromise, jeopardize or interfere in any material respect with the rights of Parent or any member of the Parent Group under the applicable insurance policy.
(e) All payments and reimbursements by SpinCo pursuant to this Section 5.1 will be made within forty-five (45) days after SpinCo’s receipt of an invoice therefor from Parent. Parent shall retain the exclusive right to control its insurance policies and programs, including the right to exhaust, settle, release, commute, buy-back buyback or otherwise resolve disputes with respect to any of its insurance policies and programs and to amend, modify or waive any rights under any such insurance policies and programs, notwithstanding whether any such policies or programs apply to any SpinCo Liabilities and/or claims SpinCo has made or could make in the future, and no member of the SpinCo Group shall erode, exhaust, settle, release, commute, buy-back buyback or otherwise resolve disputes with Parent’s insurers with respect to any of Parent’s insurance policies and programs, or amend, modify or waive any rights under any such insurance policies and programs. SpinCo shall cooperate with Parent and share such information as is reasonably necessary in order to permit Parent to manage and conduct its insurance matters as Parent deems appropriate. Each Parent shall use commercially reasonable efforts to obtain extended reporting for any claims made Policies or portions of Policies with claims made coverage features for acts or omissions by any member of the SpinCo Group incurred prior to the Effective Time. For the avoidance of doubt, each Party and any member of its applicable Group has the sole right to settle or otherwise resolve Thirdthird-Party Claims party claims made against it or any member of its applicable Group covered under an applicable insurance policy. Notwithstanding anything in the foregoing to the contrary, Parent shall have the sole right to settle or otherwise resolve Third-Party Claims covered under a Designated Policy without the prior written consent of SpinCo unless such settlement (i) involves any admission, finding or determination of wrongdoing or violation of Law by any member of the SpinCo Group or (ii) does not provide for a full, unconditional and irrevocable release of the applicable member(s) of the SpinCo Group from all Liability in connection with the Third-Party Claim, in which case Parent shall not settle or otherwise resolve such Third-Party Claims without the prior written consent of SpinCo (which consent may not be unreasonably withheld, delayed or conditioned).
(f) This Agreement shall not be considered as an attempted assignment of any policy of insurance or as a contract of insurance and shall not be construed to waive any right or remedy of any member of the Parent Group in respect of any insurance policy or any other contract or policy of insurance.
(g) SpinCo does hereby, for itself and each other member of the SpinCo Group, agree that no member of the Parent Group shall have any Liability whatsoever as a result of the insurance policies and practices of Parent and the members of the Parent Group as in effect at any time, including as a result of the level or scope of any such insurance, the creditworthiness of any insurance carrier, the terms and conditions of any policy, or the adequacy or timeliness of any notice to any insurance carrier with respect to any claim or potential claim or otherwise.
Appears in 1 contract
Samples: Separation and Distribution Agreement (Cars.com Inc.)
Insurance Matters. (a) Parent KAR and SpinCo agree to cooperate in good faith to provide for an orderly transition of insurance coverage from the date hereof through the Effective Time. In no event shall ParentKAR, any other member of the Parent KAR Group or any Parent KAR Indemnitee have any Liability or obligation whatsoever to any member of the SpinCo Group in the event that any (i) insurance policy or other contract or policy of insurance policy related contract shall be terminated or otherwise cease to be in effect for any reason, shall be unavailable or inadequate to cover any Liability of any member of the SpinCo Group for any reason whatsoever or shall not be cancelled, not renewed or not extended beyond the current expiration date or (ii) any insurer declines, denies, delays or obstructs any claim paymentdate.
(b) From and after the Effective Time, SpinCowith respect to any losses, damages and Liability incurred by any member of the SpinCo Group Group, or any arising out of their respective employees (including former facts, events or inactive employees) shall cease to be insured bycircumstances occurring, shall have no access or availability to or under, shall not be entitled to make claims on or under and shall not be entitled to claim benefits from or seek coverage under, and shall not have any rights to or under, any of Parent’s or any member of the Parent Group’s insurance policies or any of their respective self-insured programs in place prior to the Effective Time. With respect , KAR will provide SpinCo with access to, and SpinCo may, upon ten (10) days’ prior written notice to KAR, make claims on or under under, KAR’s third-party insurance policies in place immediately prior to the Effective Time and KAR’s historical third-party policies of insurance, but solely to the extent that such policies provided on Schedule 5.1(b) (collectivelycoverage for SpinCo Liabilities or Liabilities arising from or in connection with actions, inactions, events, omissions, conditions, facts or circumstances occurring or existing prior to the Effective Time, in each case relating to, arising out of or resulting from the SpinCo Business, the “Designated Policies”) SpinCo Assets or the SpinCo Liabilities; provided that such access to, and the right to make claims under, such insurance policies shall be subject to the terms and conditions of such insurance policies, including any limits on coverage or scope, any deductibles, self-insured retentions, loss reimbursements and other fees and expenses, and any retrospectively rated or other premium adjustments, resulting from such losses, damages or Liability. Any deductible, loss reimbursement, other fee or expense, or retrospectively rated or other premium adjustment, resulting from such losses, damages or Liability shall be SpinCo’s sole responsibility. SpinCo’s access shall be subject to the following additional conditions:
(i) SpinCo shall notify Parentreport any claim to KAR, as promptly as practicable, of and in any incident, circumstance event in sufficient time so that such claim may be made in accordance with KAR’s claim reporting procedures in effect immediately prior to the Effective Time (or occurrence that may lead in accordance with any modifications to a claim made such procedures after the Effective Time communicated by Parent or any member of the Parent Group under a Designated PolicyKAR to SpinCo in writing);
(ii) shallSpinCo may, in its sole discretion, report such claim to the insurers on its and/or SpinCo’s behalf with a request that the insurers defend and indemnify it and/or SpinCo;
(iii) SpinCo and the members of the SpinCo Group shall cause indemnify, hold harmless and reimburse KAR and the members of the KAR Group for any fees and expenses incurred by KAR or any members of the KAR Group to the extent resulting from any access to, any claims made by SpinCo or any other members of the SpinCo Group tounder, at SpinCo’s sole cost and expense, cooperate with and assist Parent and the members of the Parent Group and share such information as is necessary in order any insurance provided pursuant to permit Parent and the members of the Parent Group to manage and conduct the insurance matters contemplated by this Section 5.15.1(b), including with respect to any indemnity payments, settlements, judgments, legal fees and allocated claim or loss adjusting expenses and claim handling fees, whether such claims are made by Parent SpinCo, its employees or any member of the Parent Group under any Designated PolicyThird Parties; and
(iiiiv) SpinCo shall exclusively bear (and neither Parent KAR nor any members of the Parent KAR Group shall have any obligation to repay or reimburse SpinCo or any member of the SpinCo Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts (including where any insurer declines, denies, delays or obstructs any claim payment) of all such claims made with respect to any losses, damages and Liability incurred by SpinCo or any member of the SpinCo Group under the policies as provided for in this Section 5.1(b). In the event that any member of the KAR Group incurs any losses, damages or Liability prior to or in respect of the period prior to the Effective Time for which such member of the KAR Group is entitled to coverage under SpinCo’s third-party insurance policies, the Designated Policiessame process pursuant to this Section 5.1(b) shall apply, substituting “KAR” for “SpinCo” and “SpinCo” for “KAR.”
(c) Except as provided in Section 5.1(b), from and after the Effective Time, neither SpinCo nor any member of the SpinCo Group shall have any rights to or under any of the insurance policies of KAR or any other member of the KAR Group. At the Effective Time, SpinCo shall have in effect all insurance programs required to comply with SpinCo’s contractual obligations and such other Policies insurance policies required by Law or as reasonably necessary or appropriate for companies operating a business similar to SpinCo’s. Such insurance programs may include general liability, commercial auto liability, workers’ compensation, employer’s liability, cyber security product liability, professional services liability, property, open lot, employment practices liability, employee dishonesty/crime, directors’ and officers’ liability and fiduciary liability.
(d) Neither SpinCo nor any member of the SpinCo Group, in connection with any making a claim under any insurance policy of Parent KAR or any member of the Parent KAR Group (including the Designated Policies)pursuant to this Section 5.1, shall take any action that would be reasonably likely to (i) have a materially an adverse impact on the then-current relationship between Parent KAR or any member of the Parent KAR Group, on the one hand, and the applicable insurance company, on the other hand; , (ii) result in the applicable insurance company terminating or materially reducing coverage, or materially increasing the amount of any premium owed by Parent KAR or any member of the Parent KAR Group under the applicable insurance policy; , or (iii) otherwise compromise, jeopardize or interfere in any material respect with the rights of Parent KAR or any member of the Parent KAR Group under the applicable insurance policy.
(e) Parent All payments and reimbursements by SpinCo pursuant to this Section 5.1 will be made within fifteen (15) days after SpinCo’s receipt of an invoice therefor from KAR. If KAR incurs costs to enforce SpinCo’s obligations herein, SpinCo agrees to indemnify and hold harmless KAR for such enforcement costs, including reasonable attorneys’ fees pursuant to Section 4.6. KAR shall retain the exclusive right to control its insurance policies and programs, including the right under the policies or applicable law to settle the policies to which losses or claim expenses are allocated, to exhaust, settle, release, commute, buy-back or otherwise resolve disputes with respect to any of its insurance policies and programs and to amend, modify or waive any rights under any such insurance policies and programs, notwithstanding whether any such policies or programs apply to any SpinCo Liabilities and/or claims SpinCo has made or could make in the future, and no member of the SpinCo Group shall allocate losses or claims or loss adjusting expenses to, or erode, exhaust, settle, release, commute, buy-back or otherwise resolve disputes with ParentKAR’s insurers with respect to any of ParentKAR’s insurance policies and programs, or amend, modify or waive any rights under any such insurance policies and programs. SpinCo shall cooperate with Parent KAR and share such information as is reasonably necessary in order to permit Parent KAR to manage and conduct its insurance matters as Parent it deems appropriate. Each Party and KAR shall share such information with SpinCo as is reasonable necessary to enable SpinCo so to cooperate with KAR. Except as otherwise expressly provided in this Agreement, neither KAR nor any member of its applicable the members of the KAR Group has the sole right shall have any obligation to settle or otherwise resolve Third-Party Claims made against it secure extended reporting for any claims under any liability policies of KAR or any member of its applicable the KAR Group covered under an applicable insurance policy. Notwithstanding anything in the foregoing to the contrary, Parent shall have the sole right to settle for any acts or otherwise resolve Third-Party Claims covered under a Designated Policy without the prior written consent of SpinCo unless such settlement (i) involves any admission, finding or determination of wrongdoing or violation of Law omissions by any member of the SpinCo Group or (ii) does not provide for a full, unconditional and irrevocable release of incurred prior to the applicable member(s) of the SpinCo Group from all Liability in connection with the Third-Party Claim, in which case Parent shall not settle or otherwise resolve such Third-Party Claims without the prior written consent of SpinCo (which consent may not be unreasonably withheld, delayed or conditioned)Effective Time.
(f) This Agreement shall not be considered as an attempted assignment of any policy of insurance or as a contract of insurance and shall not be construed to waive any right or remedy of any member of the Parent KAR Group in respect of any insurance policy or any other contract or policy of insurance.
(g) SpinCo does hereby, for itself and each other member of the SpinCo Group, agree that no member of the Parent KAR Group shall have any Liability whatsoever as a result of the insurance policies and practices of Parent KAR and the members of the Parent KAR Group as in effect at any time, including as a result of the level or scope of any such insurance, the creditworthiness of any insurance carrier, the terms and conditions of any policy, or the adequacy or timeliness of any notice to any insurance carrier with respect to any claim or potential claim or otherwise.
Appears in 1 contract
Samples: Separation and Distribution Agreement (IAA Spinco Inc.)
Insurance Matters. (a) Parent and SpinCo agree to cooperate in good faith to provide for an orderly transition of insurance coverage from the date hereof through the Effective Time. In no event shall Parent, any other member of the Parent Group or any Parent Indemnitee have Liability or obligation whatsoever to any member of the SpinCo Group in the event that any (i) insurance policy or insurance policy related contract shall be terminated or otherwise cease to be in effect for any reason, shall be unavailable or inadequate to cover any Liability of any member of the SpinCo Group for any reason whatsoever or shall not be cancelled, not renewed or not extended beyond the current expiration date or (ii) any insurer declines, denies, delays or obstructs any claim paymentdate.
(b) From and after the Effective Time, SpinCowith respect to any losses, damages and Liability incurred by any member of the SpinCo Group or any of their respective employees (including former or inactive employees) shall cease to be insured by, shall have no access or availability to or under, shall not be entitled to make claims on or under and shall not be entitled to claim benefits from or seek coverage under, and shall not have any rights to or under, any of Parent’s or any member of the Parent Group’s insurance policies or any of their respective self-insured programs in place prior to the Effective Time. With respect , Parent will provide SpinCo with access to, and SpinCo may make claims under, Parent’s insurance policies in place immediately prior to the Effective Time (and any extended reporting for claims on or under made policies) and Parent’s historical policies of insurance, but solely to the extent that such policies provided coverage for members of the SpinCo Group or the SpinCo Business prior to the Effective Time; provided that such access to, and the right to make claims under, such insurance policies, shall be subject to the terms, conditions and exclusions of such insurance policies, including but not limited to any limits on Schedule 5.1(b) (collectivelycoverage or scope, any deductibles, self-insured retentions and other fees and expenses, and shall be subject to the “Designated Policies”) SpinCofollowing additional conditions:
(i) SpinCo shall notify Parent, as promptly as practicable, of any incident, circumstance or occurrence that may lead to a claim made by Parent or any member of the Parent Group under a Designated PolicySpinCo pursuant to this Section 5.1(b);
(ii) shall, SpinCo and shall cause the other members of the SpinCo Group toshall indemnify, at SpinCo’s sole cost hold harmless and expense, cooperate with and assist reimburse Parent and the members of the Parent Group for any deductibles, self-insured retention, fees, indemnity payments, settlements, judgments, legal fees, allocated claims expenses and share such information as is necessary in order to permit claim handling fees, and other expenses incurred by Parent and the or any members of the Parent Group to manage and conduct the extent resulting from any access to, or any claims made by SpinCo or any other members of the SpinCo Group under, any insurance matters contemplated by provided pursuant to this Section 5.15.1(b), including with respect to any whether such claims are made by Parent SpinCo, its employees or any member of the Parent Group under any Designated Policythird Persons; and
(iii) SpinCo shall exclusively bear (and neither Parent nor any members of the Parent Group shall have any obligation to repay or reimburse SpinCo or any member of the SpinCo Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts (including where any insurer declines, denies, delays or obstructs any claim payment) of all such claims made with respect to any losses, damages and Liability incurred by SpinCo or any member of the SpinCo Group under the policies as provided for in this Section 5.1(b). In the event an insurance policy aggregate is exhausted, or believed likely to be exhausted, due to noticed claims, the SpinCo Group, on the one hand, and the Parent Group, on the other hand, shall be responsible for their pro rata portion of the reinstatement premium, if any, based upon the losses of such Group submitted to Parent’s insurance carrier(s) (including any submissions prior to the Effective Time). To the extent that the Parent Group or the SpinCo Group is allocated more than its pro rata portion of such premium due to the timing of losses submitted to Parent’s insurance carrier(s), the other party shall promptly pay the first party an amount so that each Group has been properly allocated its pro rata portion of the reinstatement premium. Subject to the following sentence, a Party may elect not to reinstate the policy aggregate. In the event that a Party elects not to reinstate the policy aggregate, it shall provide prompt written notice to the other Party. A Party which elects to reinstate the policy aggregate shall be responsible for all reinstatement premiums and other costs associated with such reinstatement. In the event that any member of the Parent Group incurs any losses, damages or Liability prior to or in respect of the period prior to the Effective Time for which such member of the Parent Group is entitled to coverage under SpinCo’s third-party insurance policies, the Designated Policiessame process pursuant to this Section 5.1(b) shall apply, substituting “Parent” for “SpinCo” and “SpinCo” for “Parent”, including for purposes of the first sentence of Section 5.1(e).
(c) Except as provided in Section 5.1(b), from and after the Effective Time, neither SpinCo nor any member of the SpinCo Group shall have any rights to or under any of the insurance policies of Parent or any other member of the Parent Group. At the Effective Time, SpinCo shall have in effect all insurance programs required to comply with SpinCo’s contractual obligations and such other Policies required by Law or as reasonably necessary or appropriate for companies operating a business similar to SpinCo’s.
(d) Neither SpinCo nor any member of the SpinCo Group, in connection with any making a claim under any insurance policy of Parent or any member of the Parent Group (including the Designated Policies)pursuant to this Section 5.1, shall take any action that would be reasonably likely to (i) have a materially material and adverse impact on the then-current relationship between Parent or any member of the Parent Group, on the one hand, and the applicable insurance company, on the other hand; (ii) result in the applicable insurance company terminating or materially reducing coverage, or materially increasing the amount of any premium owed by Parent or any member of the Parent Group under the applicable insurance policy; or (iii) otherwise compromise, jeopardize or interfere in any material respect with the rights of Parent or any member of the Parent Group under the applicable insurance policy.
(e) All payments and reimbursements by SpinCo pursuant to this Section 5.1 will be made within forty-five (45) days after SpinCo’s receipt of an invoice therefor from Parent. Parent shall retain the exclusive right to control its insurance policies and programs, including the right to exhaust, settle, release, commute, buy-back buyback or otherwise resolve disputes with respect to any of its insurance policies and programs and to amend, modify or waive any rights under any such insurance policies and programs, notwithstanding whether any such policies or programs apply to any SpinCo Liabilities and/or claims SpinCo has made or could make in the future, and no member of the SpinCo Group shall erode, exhaust, settle, release, commute, buy-back buyback or otherwise resolve disputes with Parent’s insurers with respect to any of Parent’s insurance policies and programs, or amend, modify or waive any rights under any such insurance policies and programs. SpinCo shall cooperate with Parent and share such information as is reasonably necessary in order to permit Parent to manage and conduct its insurance matters as Parent deems appropriate. Each Parent shall use commercially reasonable efforts to obtain extended reporting for any claims made Policies or portions of Policies with claims made coverage features for acts or omissions by any member of the SpinCo Group incurred prior to the Effective Time. For the avoidance of doubt, each Party and any member of its applicable Group has the sole right to settle or otherwise resolve Thirdthird-Party Claims party claims made against it or any member of its applicable Group covered under an applicable insurance policy. Notwithstanding anything in the foregoing to the contrary, Parent shall have the sole right to settle or otherwise resolve Third-Party Claims covered under a Designated Policy without the prior written consent of SpinCo unless such settlement (i) involves any admission, finding or determination of wrongdoing or violation of Law by any member of the SpinCo Group or (ii) does not provide for a full, unconditional and irrevocable release of the applicable member(s) of the SpinCo Group from all Liability in connection with the Third-Party Claim, in which case Parent shall not settle or otherwise resolve such Third-Party Claims without the prior written consent of SpinCo (which consent may not be unreasonably withheld, delayed or conditioned).
(f) This Agreement shall not be considered as an attempted assignment of any policy of insurance or as a contract of insurance and shall not be construed to waive any right or remedy of any member of the Parent Group in respect of any insurance policy or any other contract or policy of insurance.
(g) SpinCo does hereby, for itself and each other member of the SpinCo Group, agree that no member of the Parent Group shall have any Liability whatsoever as a result of the insurance policies and practices of Parent and the members of the Parent Group as in effect at any time, including as a result of the level or scope of any such insurance, the creditworthiness of any insurance carrier, the terms and conditions of any policy, or the adequacy or timeliness of any notice to any insurance carrier with respect to any claim or potential claim or otherwise.
Appears in 1 contract
Samples: Separation and Distribution Agreement (Cars.com Inc.)
Insurance Matters. (a) Parent and SpinCo agree to cooperate in good faith to provide for an orderly transition of insurance coverage from the date hereof through the Effective Time. In no event shall ParentSpinCo, any other member of the Parent SpinCo Group or any Parent SpinCo Indemnitee have Liability or obligation whatsoever to any member of the SpinCo Parent Group under this Section 5.1 in the event that any (i) insurance policy or insurance policy related contract Policies shall be terminated or otherwise cease to be in effect for any reason, shall be unavailable or inadequate to cover any Liability of any member of the SpinCo Parent Group for any reason whatsoever or shall not be cancelled, not renewed or not extended beyond the current expiration date or (ii) any insurer declines, denies, delays or obstructs any claim payment.
(b) From and after the Effective Time, SpinCo, any member as a result of the Policies and practices of SpinCo Group or any of their respective employees (including former or inactive employees) shall cease to be insured by, shall have no access or availability to or under, shall not be entitled to make claims on or under and shall not be entitled to claim benefits from or seek coverage under, and shall not have any rights to or under, any of Parent’s or any member of the Parent Group’s insurance policies or any of their respective self-insured programs in place prior to the Effective Time. With respect to claims on or under the policies provided on Schedule 5.1(b) (collectively, the “Designated Policies”) SpinCo:
(i) shall notify Parent, as promptly as practicable, of any incident, circumstance or occurrence that may lead to a claim made by Parent or any member of the Parent Group under a Designated Policy;
(ii) shall, and shall cause the other members of the SpinCo Group to, at SpinCo’s sole cost and expense, cooperate with and assist Parent and the members of the Parent Group and share such information as is necessary in order to permit Parent and the members of the Parent Group to manage and conduct the insurance matters contemplated by this Section 5.1, including with respect to any claims by Parent or any member of the Parent Group under any Designated Policy; and
(iii) shall exclusively bear (and neither Parent nor any members of the Parent Group shall have any obligation to repay or reimburse SpinCo or any member of the SpinCo Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts (including where any insurer declines, denies, delays or obstructs any claim payment) of all claims made with respect to any losses, damages and Liability incurred by any member of the SpinCo Group prior to the Effective Time under the Designated Policies.
(c) At the Effective Time, SpinCo shall have in effect all insurance programs required to comply with SpinCo’s contractual obligations and such other Policies required by Law or as reasonably necessary or appropriate for companies operating a business similar to SpinCo’s.
(d) Neither SpinCo nor any member of the SpinCo Group, in connection with any claim under any insurance policy of Parent or any member of the Parent Group (including the Designated Policies), shall take any action that would be reasonably likely to (i) have a materially adverse impact on the then-current relationship between Parent or any member of the Parent Group, on the one hand, and the applicable insurance company, on the other hand; (ii) result in the applicable insurance company terminating or materially reducing coverage, or materially increasing the amount of any premium owed by Parent or any member of the Parent Group under the applicable insurance policy; or (iii) otherwise compromise, jeopardize or interfere in any material respect with the rights of Parent or any member of the Parent Group under the applicable insurance policy.
(e) Parent shall retain the exclusive right to control its insurance policies and programs, including the right to exhaust, settle, release, commute, buy-back or otherwise resolve disputes with respect to any of its insurance policies and programs and to amend, modify or waive any rights under any such insurance policies and programs and no member of the SpinCo Group shall erode, exhaust, settle, release, commute, buy-back or otherwise resolve disputes with Parent’s insurers with respect to any of Parent’s insurance policies and programs, or amend, modify or waive any rights under any such insurance policies and programs. SpinCo shall cooperate with Parent and share such information as is necessary in order to permit Parent to manage and conduct its insurance matters as Parent deems appropriate. Each Party and any member of its applicable Group has the sole right to settle or otherwise resolve Third-Party Claims made against it or any member of its applicable Group covered under an applicable insurance policy. Notwithstanding anything in the foregoing to the contrary, Parent shall have the sole right to settle or otherwise resolve Third-Party Claims covered under a Designated Policy without the prior written consent of SpinCo unless such settlement (i) involves any admission, finding or determination of wrongdoing or violation of Law by any member of the SpinCo Group or (ii) does not provide for a full, unconditional and irrevocable release of the applicable member(s) of the SpinCo Group from all Liability in connection with the Third-Party Claim, in which case Parent shall not settle or otherwise resolve such Third-Party Claims without the prior written consent of SpinCo (which consent may not be unreasonably withheld, delayed or conditioned).
(f) This Agreement shall not be considered as an attempted assignment of any policy of insurance or as a contract of insurance and shall not be construed to waive any right or remedy of any member of the Parent Group in respect of any insurance policy or any other contract or policy of insurance.
(g) SpinCo does hereby, for itself and each other member of the SpinCo Group, agree that no member of the Parent Group shall have any Liability whatsoever as a result of the insurance policies and practices of Parent and the members of the Parent Group as in effect at any time, including as a result of the level or scope of any such insurance, the creditworthiness of any insurance carrier, the terms and conditions of any policyPolicy, or the adequacy or timeliness of any notice to any insurance carrier with respect to any claim or potential claim or otherwise.
(b) From and after the Effective Time, with respect to any Liability incurred by any member of the Parent Group prior to the Effective Time, SpinCo will provide Parent with access to, including cooperating in good faith with Parent such that Parent may make claims under, Parent’s Occurrence-Based Policies in place immediately prior to the Effective Time (which such Occurrence-Based Policies shall be allocated to SpinCo or any member of the SpinCo Group as of the Effective Time), but solely to the extent that such Occurrence-Based Policies provided coverage for members of the Parent Group prior to the Effective Time; provided that such access to, and the right to make claims under, such Occurrence-Based Policies, shall be subject to the terms, conditions and exclusions of such Occurrence-Based Policies, including but not limited to any limits on coverage or scope, any deductibles, retentions and other fees and expenses, and shall be subject to the following additional conditions:
(i) Parent shall notify SpinCo, as promptly as practicable, of any claim made by Parent pursuant to this Section 5.1(b);
(ii) Parent and the members of the Parent Group shall exclusively bear and be liable for (and neither SpinCo nor any members of the SpinCo Group shall have any obligation to repay or reimburse Parent or any member of the Parent Group for), and shall indemnify, hold harmless and reimburse SpinCo and the members of the SpinCo Group for any deductibles, retentions, coinsurance, fees, and retroactive and/or future premium increases and other expenses incurred by SpinCo or any members of the SpinCo Group to the extent resulting from any access to, or any claims made by Parent or any other members of the Parent Group or otherwise made in respect of losses of the Parent Business under, any insurance provided pursuant to this Section 5.1(b), including any indemnity payments, settlements, judgments, legal fees, allocated claims expenses and claim handling fees, whether such claims are made by Parent, its employees or third Persons; and
(iii) Parent shall exclusively bear (and neither SpinCo nor any members of the SpinCo Group shall have any obligation to repay or reimburse Parent or any member of the Parent Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts of all such claims made by Parent or any member of the Parent Group under the Occurrence-Based Policies as provided for in this Section 5.1(b). In the event an insurance policy aggregate is exhausted, or believed likely to be exhausted, due to noticed claims, the Parties shall discuss in good faith the reinstatement of the policy aggregate.
Appears in 1 contract
Samples: Separation and Distribution Agreement (Bluerock Homes Trust, Inc.)
Insurance Matters. (a) Parent and SpinCo agree to cooperate in good faith to provide for an orderly transition of insurance coverage from the date hereof through the Effective Time. In no event shall ParentSpinCo, any other member of the Parent SpinCo Group or any Parent SpinCo Indemnitee have Liability or obligation whatsoever to any member of the SpinCo Parent Group under this Section 5.1 in the event that any (i) insurance policy or insurance policy related contract Policies shall be terminated or otherwise cease to be in effect for any reason, shall be unavailable or inadequate to cover any Liability of any member of the SpinCo Parent Group for any reason whatsoever or shall not be cancelled, not renewed or not extended beyond the current expiration date or (ii) any insurer declines, denies, delays or obstructs any claim payment.
(b) From and after the Effective Time, SpinCo, any member as a result of the Policies and practices of SpinCo Group or any of their respective employees (including former or inactive employees) shall cease to be insured by, shall have no access or availability to or under, shall not be entitled to make claims on or under and shall not be entitled to claim benefits from or seek coverage under, and shall not have any rights to or under, any of Parent’s or any member of the Parent Group’s insurance policies or any of their respective self-insured programs in place prior to the Effective Time. With respect to claims on or under the policies provided on Schedule 5.1(b) (collectively, the “Designated Policies”) SpinCo:
(i) shall notify Parent, as promptly as practicable, of any incident, circumstance or occurrence that may lead to a claim made by Parent or any member of the Parent Group under a Designated Policy;
(ii) shall, and shall cause the other members of the SpinCo Group to, at SpinCo’s sole cost and expense, cooperate with and assist Parent and the members of the Parent Group and share such information as is necessary in order to permit Parent and the members of the Parent Group to manage and conduct the insurance matters contemplated by this Section 5.1, including with respect to any claims by Parent or any member of the Parent Group under any Designated Policy; and
(iii) shall exclusively bear (and neither Parent nor any members of the Parent Group shall have any obligation to repay or reimburse SpinCo or any member of the SpinCo Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts (including where any insurer declines, denies, delays or obstructs any claim payment) of all claims made with respect to any losses, damages and Liability incurred by any member of the SpinCo Group prior to the Effective Time under the Designated Policies.
(c) At the Effective Time, SpinCo shall have in effect all insurance programs required to comply with SpinCo’s contractual obligations and such other Policies required by Law or as reasonably necessary or appropriate for companies operating a business similar to SpinCo’s.
(d) Neither SpinCo nor any member of the SpinCo Group, in connection with any claim under any insurance policy of Parent or any member of the Parent Group (including the Designated Policies), shall take any action that would be reasonably likely to (i) have a materially adverse impact on the then-current relationship between Parent or any member of the Parent Group, on the one hand, and the applicable insurance company, on the other hand; (ii) result in the applicable insurance company terminating or materially reducing coverage, or materially increasing the amount of any premium owed by Parent or any member of the Parent Group under the applicable insurance policy; or (iii) otherwise compromise, jeopardize or interfere in any material respect with the rights of Parent or any member of the Parent Group under the applicable insurance policy.
(e) Parent shall retain the exclusive right to control its insurance policies and programs, including the right to exhaust, settle, release, commute, buy-back or otherwise resolve disputes with respect to any of its insurance policies and programs and to amend, modify or waive any rights under any such insurance policies and programs and no member of the SpinCo Group shall erode, exhaust, settle, release, commute, buy-back or otherwise resolve disputes with Parent’s insurers with respect to any of Parent’s insurance policies and programs, or amend, modify or waive any rights under any such insurance policies and programs. SpinCo shall cooperate with Parent and share such information as is necessary in order to permit Parent to manage and conduct its insurance matters as Parent deems appropriate. Each Party and any member of its applicable Group has the sole right to settle or otherwise resolve Third-Party Claims made against it or any member of its applicable Group covered under an applicable insurance policy. Notwithstanding anything in the foregoing to the contrary, Parent shall have the sole right to settle or otherwise resolve Third-Party Claims covered under a Designated Policy without the prior written consent of SpinCo unless such settlement (i) involves any admission, finding or determination of wrongdoing or violation of Law by any member of the SpinCo Group or (ii) does not provide for a full, unconditional and irrevocable release of the applicable member(s) of the SpinCo Group from all Liability in connection with the Third-Party Claim, in which case Parent shall not settle or otherwise resolve such Third-Party Claims without the prior written consent of SpinCo (which consent may not be unreasonably withheld, delayed or conditioned).
(f) This Agreement shall not be considered as an attempted assignment of any policy of insurance or as a contract of insurance and shall not be construed to waive any right or remedy of any member of the Parent Group in respect of any insurance policy or any other contract or policy of insurance.
(g) SpinCo does hereby, for itself and each other member of the SpinCo Group, agree that no member of the Parent Group shall have any Liability whatsoever as a result of the insurance policies and practices of Parent and the members of the Parent Group as in effect at any time, including as a result of the level or scope of any such insurance, the creditworthiness of any insurance carrier, the terms and conditions of any policyPolicy, or the adequacy or timeliness of any notice to any insurance carrier with respect to any claim or potential claim or otherwise.
(b) From and after the Effective Time, with respect to any Liability incurred by any member of the Parent Group prior to the Effective Time, SpinCo will provide Parent with access to, including cooperating in good faith with Parent such that Parent may make claims under, Parent’s Occurrence-Based Policies in place immediately prior to the Effective Time (which such Occurrence-Based Policies shall be allocated to SpinCo or any member of the SpinCo Group as of the Effective Time), but solely to the extent that such Occurrence-Based Policies provided coverage for members of the Parent Group prior to the Effective Time; provided that such access to, and the right to make claims under, such Occurrence-Based Policies, shall be subject to the terms, conditions and exclusions of such Occurrence-Based Policies, including but not limited to any limits on coverage or scope, any deductibles, retentions and other fees and expenses, and shall be subject to the following additional conditions:
(i) Parent shall notify SpinCo, as promptly as practicable, of any claim made by Parent pursuant to this Section 5.1(b);
(ii) Parent and the members of the Parent Group shall exclusively bear and be liable for (and neither SpinCo nor any members of the SpinCo Group shall have any obligation to repay or reimburse Parent or any member of the Parent Group for), and shall indemnify, hold harmless and reimburse SpinCo and the members of the SpinCo Group for any deductibles, retentions, coinsurance, fees,and retroactive and/or future premium increases and other expenses incurred by SpinCo or any members of the SpinCo Group to the extent resulting from any access to, or any claims made by Parent or any other members of the Parent Group or otherwise made in respect of losses of the Parent Business under, any insurance provided pursuant to this Section 5.1(b), including any indemnity payments, settlements, judgments, legal fees, allocated claims expenses and claim handling fees, whether such claims are made by Parent, its employees or third Persons; and
(iii) Parent shall exclusively bear (and neither SpinCo nor any members of the SpinCo Group shall have any obligation to repay or reimburse Parent or any member of the Parent Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts of all such claims made by Parent or any member of the Parent Group under the Occurrence-Based Policies as provided for in this Section 5.1(b). In the event an insurance policy aggregate is exhausted, or believed likely to be exhausted, due to noticed claims, the Parties shall discuss in good faith the reinstatement of the policy aggregate.
Appears in 1 contract
Samples: Separation and Distribution Agreement (Bluerock Homes Trust, Inc.)
Insurance Matters. (a) Parent and SpinCo agree Prior to cooperate in good faith to provide for an orderly transition of insurance coverage from the date hereof through the Effective Time. In no event shall Parent, any the Parties will use commercially reasonable efforts to either obtain separate insurance policies for SpinCo and the other member members of the Parent SpinCo Group or any Parent Indemnitee have Liability ensure that SpinCo and the other members of the SpinCo Group are named insureds under existing insurance policies covering SpinCo or obligation whatsoever to any member of the SpinCo Group in the event (it being understood that SpinCo will be responsible for all premiums, costs and fees associated with any (i) insurance policy policies covering SpinCo or insurance policy related contract shall be terminated or otherwise cease to be in effect for any reason, shall be unavailable or inadequate to cover any Liability of any member of the SpinCo Group pursuant to this Section 5.1(a), whether paid directly to any insurance provider or as reimbursement to Parent for any reason whatsoever amounts expended by it for such policies). At the Effective Time, the SpinCo Group will have in effect all insurance programs required to comply with the contractual obligations of the SpinCo Group and such other insurance policies required by applicable Law or shall be cancelled, not renewed as reasonably necessary or not extended beyond appropriate for companies operating a business similar to the current expiration date or (ii) any insurer declines, denies, delays or obstructs any claim paymentSpinCo Business.
(b) From and after the Effective Time, SpinCo, with respect to any Liabilities incurred by any member of the SpinCo Group or any prior to the Effective Time, Parent will provide such member of their respective employees (including former or inactive employees) shall cease the SpinCo Group with access to, and such member of the SpinCo Group may, upon ten days’ prior notice to be insured byParent, shall have no access or availability to or under, shall not be entitled to make claims on or under and shall not be entitled to claim benefits from or seek coverage under, and shall not have any rights to or under, any the insurance policies of Parent’s or any member of the Parent Group’s insurance policies or any of their respective self-insured programs RemainCo Group in place prior to the Effective Time. With respect , but solely to claims on or under the extent that such policies provided on Schedule 5.1(b) (collectivelycoverage for such member of the SpinCo Group prior to the Effective Time; provided that, such access to, and the right to make claims under, the “Designated Policies”) SpinCoinsurance policies, shall be subject to the terms and conditions of such insurance policies, including any limits on coverage or scope, any deductibles and other fees and expenses, and shall be subject to the following additional conditions:
(i) SpinCo shall notify report any claim to Parent, as promptly as practicable, of and in any incident, circumstance event in sufficient time so that such claim may be made in accordance with Parent’s claim reporting procedures in effect immediately prior to the Effective Time (or occurrence that may lead in accordance with any modifications to a claim made such procedures after the Effective Time communicated by Parent or any member of the Parent Group under a Designated Policyto SpinCo in writing);
(ii) shall, SpinCo and shall cause the other members of the SpinCo Group to, at SpinCo’s sole cost and expense, cooperate with and assist Parent and the members of the Parent Group and share such information as is necessary in order to permit Parent and the members of the Parent Group to manage and conduct the insurance matters contemplated by this Section 5.1, including with respect to any claims by Parent or any member of the Parent Group under any Designated Policy; and
(iii) shall exclusively bear and be liable for (and neither Parent nor any members of the Parent RemainCo Group shall have any obligation to repay or reimburse SpinCo or any member of the SpinCo Group for) and shall indemnify, hold harmless and reimburse Parent and the other members of the RemainCo Group for any deductibles, self-insured retention, fees and expenses to the extent resulting from any access to, or any claims made by SpinCo or any other members of the SpinCo Group under any insurance provided pursuant to this Section 5.1(b), including indemnity payments, settlements, judgments, legal fees and allocated claims expenses and claim handling fees, whether such claims are made by members of the SpinCo Group, its employees or a Third Party; and
(iii) SpinCo shall exclusively bear and be liable for (and neither Parent nor any members of the RemainCo Group shall have any obligation to repay or reimburse SpinCo or any member of the SpinCo Group for) all excluded, uninsured, uncovered, unavailable or uncollectible amounts (including where any insurer declines, denies, delays or obstructs any claim payment) of all such claims made with respect to any losses, damages and Liability incurred by SpinCo or any member of the SpinCo Group prior to the Effective Time under the Designated Policiespolicies as provided for in this Section 5.1(b) (it being understood and agreed that the foregoing shall not limit any other right of SpinCo for payment or indemnification under this Agreement).
(c) At the Effective Time, SpinCo shall have in effect all insurance programs required to comply with SpinCo’s contractual obligations and such other Policies required by Law or as reasonably necessary or appropriate for companies operating a business similar to SpinCo’s.
(d) Neither SpinCo nor any member of the SpinCo Group, in connection with any making a claim under any insurance policy of Parent or any member of the Parent RemainCo Group (including the Designated Policies)pursuant to this Section 5.1, shall take any action that would be reasonably likely to (i) have a materially an adverse impact on the then-current relationship between Parent or any member of the Parent RemainCo Group, on the one hand, and the applicable insurance company, on the other hand; (ii) result in the applicable insurance company terminating or materially reducing coverage, or materially increasing the amount of any premium owed by Parent or any member of the Parent RemainCo Group under the applicable insurance policy; or (iii) otherwise compromise, jeopardize or interfere in any material respect with the rights of Parent or any member of the Parent RemainCo Group under the applicable insurance policy.
(ed) Parent shall retain the exclusive right to control its insurance policies and programspolicies, including the right to exhaust, settle, release, commute, buy-back buyback or otherwise resolve disputes with respect to any of its insurance policies and programs and to amend, modify or waive any rights under any such insurance policies, notwithstanding whether any such policies and programs apply to any SpinCo Liabilities or claims any member of the SpinCo Group has made or could make in the future, and no member of the SpinCo Group shall erode, exhaust, settle, release, commute, buy-back buyback or otherwise resolve disputes with Parent’s insurers with respect to any of Parentthe RemainCo Group’s insurance policies and programspolicies, or amend, modify or waive any rights under any such insurance policies and programson behalf of the RemainCo Group. SpinCo shall cooperate with Parent and share such information as is reasonably necessary in order to permit Parent to manage and conduct its insurance matters as Parent it deems appropriate. Each Party and Neither Parent nor any member of its applicable the members of the RemainCo Group has the sole right shall have any obligation to settle or otherwise resolve Third-Party Claims made against it secure extended reporting for any claims under any liability policies of Parent or any member of its applicable the RemainCo Group covered under an applicable insurance policy. Notwithstanding anything in the foregoing to the contrary, Parent shall have the sole right to settle for any acts or otherwise resolve Third-Party Claims covered under a Designated Policy without the prior written consent of SpinCo unless such settlement (i) involves any admission, finding or determination of wrongdoing or violation of Law omissions by any member of the SpinCo Group or (ii) does not provide for a fullincurred prior to the Effective Time, unconditional and irrevocable release neither Parent nor any of the applicable member(s) members of the SpinCo RemainCo Group from all Liability in connection with the Third-Party Claim, in which case Parent shall not settle or otherwise resolve such Third-Party Claims without the prior written consent of SpinCo (which consent may not be unreasonably withheld, delayed or conditioned)have any obligation to obtain new insurance policies.
(f) This Agreement shall not be considered as an attempted assignment of any policy of insurance or as a contract of insurance and shall not be construed to waive any right or remedy of any member of the Parent Group in respect of any insurance policy or any other contract or policy of insurance.
(ge) SpinCo does hereby, for itself and each other member of the SpinCo Group, agree that no member of the Parent RemainCo Group shall will have any Liability whatsoever as a result of the insurance policies and practices of Parent and the other members of the Parent RemainCo Group as in effect at any time, including as a result of the level or scope of any such insurance, the creditworthiness of any insurance carrier, the terms and conditions of any policy, or the adequacy or timeliness of any notice to any insurance carrier with respect to any claim or potential claim or otherwise.
Appears in 1 contract
Samples: Separation and Distribution Agreement (Sunpower Corp)
Insurance Matters. (a) Parent and SpinCo agree to cooperate in good faith to provide for an orderly transition of insurance coverage from the date hereof through the Effective Time. In no event shall Parent, any other member of the Parent Group or any Parent Indemnitee have Liability or obligation whatsoever to any member of the SpinCo Group in the event that any (i) insurance policy or other contract or policy of insurance policy related contract shall be terminated or otherwise cease to be in effect for any reason, shall be unavailable or inadequate to cover any Liability of any member of the SpinCo Group for any reason whatsoever or shall not be cancelled, not renewed or not extended beyond the current expiration date or (ii) any insurer declines, denies, delays or obstructs any claim paymentdate.
(b) From Parent agrees to use its reasonable best efforts to cause the interests and after rights of SpinCo and the Effective Time, SpinCo, any member members of the SpinCo Group as of the Effective Time as insureds or beneficiaries or in any other capacity under occurrence-based insurance policies and programs (and under claims-made policies and programs to the extent a claim has been submitted prior to the Effective Time) of their respective employees (including former or inactive employees) shall cease to be insured by, shall have no access or availability to or under, shall not be entitled to make claims on or under and shall not be entitled to claim benefits from or seek coverage under, and shall not have any rights to or under, any of Parent’s Parent or any member of the Parent Group’s insurance policies or any of their respective self-insured programs in place prior to the Effective Time. With respect to claims on or under the policies provided on Schedule 5.1(b) Group (collectively, the “Designated Parent Policies”) SpinCo:
(i) shall notify Parent, as promptly as practicable, in respect of the period prior to the Effective Time to survive the Effective Time for the period for which such interests and rights would have survived without regard to the transactions contemplated hereby to the extent permitted by such policies; and any incident, circumstance or occurrence that may lead to a claim made proceeds received by Parent or any member of the Parent Group after the Effective Time under such policies and programs in respect of SpinCo and any member of the SpinCo Group shall be for the benefit of SpinCo and the SpinCo Group; provided that the interests and rights of SpinCo and the members of the SpinCo Group shall be subject to the terms and conditions of such insurance policies and programs, including any limits on coverage or scope, any deductibles and other fees and expenses and Parent’s allocation. In addition, to the extent that deductibles under the general liability, automobile liability, or workers’ compensation policies of Parent (the “Deductibles”) apply to claims under the Policies, Parent shall facilitate the administration and processing of such claims in a Designated Policymanner that makes available to the members of the SpinCo Group the benefit of the deductible reimbursement policies issued by Xxxxxxx Insurance Company to American Home Shield Corporation prior to the Distribution Date. In addition, Parent will process and pay all deductibles with respect to claims under the Policies, and reimbursement, if any, by Xxxxxxx Insurance Company with respect to any such claims shall be paid to SpinCo.
(i) SpinCo shall report any claim to Parent as promptly as practicable, and in any event in sufficient time so that such claim may be made in accordance with the policies’ terms and conditions;
(ii) SpinCo and the other members of the SpinCo Group shall be responsible for making payments directly to insurers where possible, and shall indemnify, hold harmless and reimburse Parent and the members of the Parent Group for any deductibles, self-insured retention, retrospective premium payments, and fees and expenses incurred by any member of the Parent Group to the extent resulting from any access to, or any claims made by SpinCo or any other members of the SpinCo Group under, any insurance provided pursuant to this Section 5.1(b), including claims previously reported and any indemnity payments, settlements, judgments, legal fees and allocated claims expenses and claim handling fees, whether such claims are made by a member of the SpinCo Group, employees or Third Parties;
(iii) SpinCo shall, and shall cause the other members of the SpinCo Group to, at SpinCo’s sole cost and expense, cooperate with and assist Parent and the members of the Parent Group and share such information Information as is reasonably necessary in order to permit Parent and the members of the Parent Group to manage and conduct the insurance matters contemplated by this Section 5.1, including with respect to any claims by Parent or any member of the Parent Group under any Designated Policy; and
(iiiiv) SpinCo shall exclusively bear (and neither Parent nor any members of the Parent Group shall have any obligation to repay or reimburse SpinCo or any member of the SpinCo Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts (including where any insurer declines, denies, delays or obstructs any claim payment) of all such claims made with respect to any losses, damages and Liability incurred by SpinCo or any member of the SpinCo Group under the policies as provided for in this Section 5.1(b). In the event an insurance policy aggregate is exhausted, or believed likely to be exhausted, due to noticed claims, the SpinCo Group, on the one hand, and the Parent Group, on the other hand, shall be responsible for their pro rata portion of the reinstatement premium, if any, based upon the losses of such Group submitted to Parent’s insurance carrier(s) (including any submissions prior to the Effective Time). To the extent that the Parent Group or the SpinCo Group is allocated more than its pro rata portion of such premium due to the timing of losses submitted to Parent’s insurance carrier(s), the other party shall promptly pay the first party an amount so that each Group has been properly allocated its pro rata portion of the reinstatement premium. Subject to the following sentence, Parent may elect not to reinstate the policy aggregate. In the event that Parent elects not to reinstate the policy aggregate, it shall provide prompt written notice to SpinCo, and SpinCo may direct Parent in writing to, and Parent shall, in such case reinstate the policy aggregate; provided that SpinCo shall be responsible for all reinstatement premiums and other costs associated with such reinstatement. In the event that any member of the Parent Group incurs any losses, damages or Liability prior to or in respect of the period prior to the Effective Time for which such member of the Parent Group is entitled to coverage under SpinCo third-party insurance policies, the Designated Policiessame process pursuant to this Section 5.1(b) shall apply, substituting “Parent” for “SpinCo” and “SpinCo” for “Parent.”
(c) Except as provided in Section 5.1(b), from and after the Effective Time, neither SpinCo nor any member of the SpinCo Group shall have any rights to or under any of the insurance policies of Parent or any other member of the Parent Group. At the Effective Time, SpinCo shall have in effect all insurance programs required to comply with SpinCoSpinCo and the SpinCo Group’s contractual obligations and such other Policies required by Law or as reasonably necessary or appropriate for companies operating a business similar to SpinCo’s.
(d) Neither SpinCo nor any member of the SpinCo Group, in connection with any making a claim under any insurance policy of Parent or any member of the Parent Group (including the Designated Policies)pursuant to this Section 5.1, shall take any action that would be reasonably likely to (i) have a materially an adverse impact on the then-current relationship between Parent or any member of the Parent Group, on the one hand, and the applicable insurance company, on the other hand; (ii) result in the applicable insurance company terminating or materially reducing coverage, or materially increasing the amount of any premium owed by Parent or any member of the Parent Group under the applicable insurance policy; or (iii) otherwise compromise, jeopardize or interfere in any material respect with the rights of Parent or any member of the Parent Group under the applicable insurance policy; provided that, for the avoidance of doubt, this Section 5.1(d) shall not preclude or otherwise restrict any member of the SpinCo Group from reporting claims to insurers in the ordinary course of business.
(e) All payments and reimbursements by SpinCo pursuant to this Section 5.1 will be made within fifteen (15) days after SpinCo’s receipt of an invoice therefor from Parent. In the event that SpinCo makes payments to insurance companies directly, then SpinCo shall make payments in compliance with the requirements and policies and procedures with respect to insurance payments in effect prior to the Effective Time. If Parent incurs costs to enforce SpinCo’s obligations herein, SpinCo agrees to indemnify and hold harmless Parent for such enforcement costs, including reasonable attorneys’ fees pursuant to Section 4.6. Parent shall retain the exclusive right to control its insurance policies and programs, including the right to exhaust, settle, release, commute, buy-back or otherwise resolve disputes with respect to any of its insurance policies and programs and to amend, modify or waive any rights under any such insurance policies and programs, notwithstanding whether any such policies or programs apply to any SpinCo Liabilities and/or claims SpinCo has made or could make in the future, and no member of the SpinCo Group shall erode, exhaust, settle, release, commute, buy-back or otherwise resolve disputes with Parent’s insurers with respect to any of Parent’s insurance policies and programs, or amend, modify or waive any rights under any such insurance policies and programs. SpinCo shall cooperate with Parent and share such information as is reasonably necessary in order to permit Parent to manage and conduct its insurance matters as Parent deems appropriate. Each Party and No member of the Parent Group shall have any obligation secure extended reporting for any claims under any Liability policies of any member of its applicable the Parent Group has the sole right to settle for any acts or otherwise resolve Third-Party Claims made against it or any member omissions of its applicable Group covered under an applicable insurance policy. Notwithstanding anything in the foregoing to the contrary, Parent shall have the sole right to settle or otherwise resolve Third-Party Claims covered under a Designated Policy without the prior written consent of SpinCo unless such settlement (i) involves any admission, finding or determination of wrongdoing or violation of Law by any member of the SpinCo Group or (ii) does not provide for a full, unconditional and irrevocable release of incurred prior to the applicable member(s) of the SpinCo Group from all Liability in connection with the Third-Party Claim, in which case Parent shall not settle or otherwise resolve such Third-Party Claims without the prior written consent of SpinCo (which consent may not be unreasonably withheld, delayed or conditioned)Effective Time.
(f) This Agreement shall not be considered as an attempted assignment of any policy of insurance or as a contract of insurance and shall not be construed to waive any right or remedy of any member of the Parent Group in respect of any insurance policy or any other contract or policy of insurance.
(g) SpinCo does hereby, for itself and each other member of the SpinCo Group, agree that no member of the Parent Group shall have any Liability whatsoever as a result of the insurance policies and practices of Parent and the members of the Parent Group as in effect at any time, including as a result of the level or scope of any such insurance, the creditworthiness of any insurance carrier, the terms and conditions of any policy, or the adequacy or timeliness of any notice to any insurance carrier with respect to any claim or potential claim or otherwise.
Appears in 1 contract
Samples: Separation and Distribution Agreement (Servicemaster Global Holdings Inc)
Insurance Matters. (a) Parent eBay and SpinCo PayPal agree to cooperate in good faith to provide for an orderly transition of insurance coverage from the date hereof through the Effective Time. In no event shall ParenteBay, any other member of the Parent eBay Group or any Parent Indemnitee eBay Indemnified Party have Liability or obligation whatsoever to any member of the SpinCo PayPal Group in the event that any (i) insurance policy or other contract or policy of insurance policy related contract shall be terminated or otherwise cease to be in effect for any reason, shall be unavailable or inadequate to cover any Liability of any member of the SpinCo PayPal Group for any reason whatsoever whatsoever, or shall not be cancelled, not renewed or not extended beyond the current expiration date or (ii) any insurer declines, denies, delays or obstructs any claim paymentdate.
(b) From and after the Effective Time, SpinCo, any member of the SpinCo Group or any of their respective employees (including former or inactive employees) shall cease to be insured by, shall have no access or availability to or under, shall not be entitled to make claims on or under and shall not be entitled to claim benefits from or seek coverage under, and shall not have any rights to or under, any of Parent’s or any member of the Parent Group’s insurance policies or any of their respective self-insured programs in place prior to the Effective Time. With respect to claims on or under the policies provided on Schedule 5.1(b) (collectively, the “Designated Policies”) SpinCo:
(i) shall notify Parent, as promptly as practicable, of any incident, circumstance or occurrence that may lead to a claim made by Parent or any member of the Parent Group under a Designated Policy;
(ii) shall, and shall cause the other members of the SpinCo Group to, at SpinCo’s sole cost and expense, cooperate with and assist Parent and the members of the Parent Group and share such information as is necessary in order to permit Parent and the members of the Parent Group to manage and conduct the insurance matters contemplated by this Section 5.1, including with respect to any claims by Parent or any member of the Parent Group under any Designated Policy; and
(iii) shall exclusively bear (and neither Parent nor any members of the Parent Group shall have any obligation to repay or reimburse SpinCo or any member of the SpinCo Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts (including where any insurer declines, denies, delays or obstructs any claim payment) of all claims made with respect to any losses, damages and Liability incurred by any member of the SpinCo PayPal Group prior to the Effective Time, eBay will provide PayPal with access to, and PayPal may, upon prior written notice to eBay in accordance with the procedures set forth on Schedule 5.1(b), make claims under, eBay’s policies or contracts of insurance in place immediately prior to the Effective Time and eBay’s historical policies of insurance, but solely to the extent that such policies provided coverage for members of the PayPal Group prior to the Effective Time; provided, that such access to, and the right to make claims under, such insurance policies, shall be subject to the terms and conditions of such insurance policies, including any limits on coverage or scope, any deductibles and other fees and expenses, and shall be subject to the following additional conditions:
(i) PayPal shall report any claim to eBay, as promptly as practicable, and in any event in sufficient time so that such claim may be made in accordance with eBay’s claim reporting procedures in effect immediately prior to the Effective Time (or in accordance with any modifications to such procedures after the Effective Time communicated by eBay to PayPal in writing);
(ii) PayPal and the members of the PayPal Group shall indemnify, hold harmless and reimburse eBay and the members of the eBay Group for any deductibles, self-insured retention (other than any such retention under an eBay Group captive insurance arrangement), fees and expenses incurred by eBay or any members of the eBay Group to the extent resulting from any access to, any claims made by PayPal or any other members of the PayPal Group under, any insurance provided pursuant to this Section 5.1(b), including any indemnity payments, settlements, judgments, legal fees and allocated claims expenses and claim handling fees, whether such claims are made by PayPal, its employees or third Persons (it being understood that amounts recovered under an eBay Group captive insurance arrangement shall not be deemed to be fees and expenses incurred by eBay or any member of the eBay Group); and
(iii) PayPal shall exclusively bear (and neither eBay nor any members of the eBay Group shall have any obligation to repay or reimburse PayPal or any member of the PayPal Group for) and shall be liable for all uninsured, uncovered, unavailable or uncollectible amounts of all such claims made by PayPal or any member of the PayPal Group under the Designated Policiespolicies as provided for in this Section 5.1(b). In the event an insurance policy aggregate is exhausted, or believed likely to be exhausted, due to noticed claims, the PayPal Group, on the one hand, and the eBay Group, on the other hand, shall be responsible for their pro rata portion of the reinstatement premium, if any, based upon the losses of such Group submitted to eBay’s insurance carrier(s) (including any submissions prior to the Effective Time). To the extent that the eBay Group or the PayPal Group is allocated more than its pro rata portion of such premium due to the timing of losses submitted to eBay’s insurance carrier(s), the other party shall promptly pay the first party an amount so that each Group shall be properly allocated its pro rata portion of the reinstatement premium. Subject to the following sentence, eBay may elect not to reinstate the policy aggregate. In the event that eBay elects not to reinstate the policy aggregate, it shall provide prompt written notice to PayPal, and PayPal may direct eBay in writing to, and eBay shall, in such case, reinstate the policy aggregate; provided, that PayPal shall then be responsible for all reinstatement premiums and other costs associated with such reinstatement. In the event that any member of the eBay Group incurs any losses, damages or Liability prior to or in respect of the period prior to the Effective Time for which such member of the eBay Group is entitled to coverage under PayPal’s insurance policies, the same process pursuant to this Section 5.1(b) shall apply, substituting “eBay” for “PayPal” and “PayPal” for “eBay.”
(c) Except as provided in Section 5.1(b), from and after the Effective Time, neither PayPal nor any member of the PayPal Group shall have any rights to or under any of the insurance policies of eBay or any other member of the eBay Group. At the Effective Time, SpinCo PayPal shall have in effect all insurance programs required to comply with SpinCoPayPal’s contractual obligations and such other Policies insurance policies required by Law or as reasonably necessary or appropriate for companies operating a business similar to SpinCoPayPal’s. Such insurance programs may include general liability, commercial auto liability, workers’ compensation, employer’s liability, product liability, professional services liability, property, cargo, employment practices liability, employee dishonesty/crime, directors’ and officers’ liability and fiduciary liability.
(d) Neither SpinCo PayPal nor any member of the SpinCo PayPal Group, in connection with any making a claim under any insurance policy of Parent eBay or any member of the Parent eBay Group (including the Designated Policies)pursuant to this Section 5.1, shall take any action (other than the act of making the claim) that would be reasonably likely to (i) have a materially an adverse impact on the then-current relationship between Parent eBay or any member of the Parent eBay Group, on the one hand, and the applicable insurance company, on the other hand; (ii) result in the applicable insurance company terminating or materially reducing coverage, or materially increasing the amount of any premium owed by Parent eBay or any member of the Parent eBay Group under the applicable insurance policy; or (iii) otherwise compromise, jeopardize or interfere in any material respect with the rights of Parent eBay or any member of the Parent eBay Group under the applicable insurance policy. All payments and reimbursements by PayPal pursuant to this Section 5.1 will be made within thirty (30) days after PayPal’s receipt of an invoice therefor from eBay. If eBay incurs costs to enforce PayPal’s obligations herein, PayPal agrees to indemnify and hold harmless eBay for such enforcement costs, including reasonable attorneys’ fees pursuant to Section 4.6(b).
(e) Parent eBay shall retain responsibility for and have the exclusive right to control Insurance Administration of its insurance policies and programs and any and all other rights with respect to its insurance policies and programs, including the right to exhaust, settle, release, commute, buy-back buyback or otherwise resolve disputes with respect to any of its insurance policies and programs and to amend, modify or waive any rights under any such insurance policies and programs, notwithstanding whether any such policies or programs apply to any PayPal Liabilities and/or claims PayPal has made or could make in the future, and no member of the SpinCo PayPal Group shall (without the prior written consent of eBay) erode, exhaust, settle, release, commute, buy-back buyback or otherwise resolve disputes with ParenteBay’s insurers with respect to any of ParenteBay’s insurance policies and programs, or amend, modify or waive any rights under any such insurance policies and programs. SpinCo PayPal shall cooperate with Parent eBay and share such information as is reasonably necessary in order to permit Parent eBay to manage and conduct its insurance matters as Parent it deems appropriate. Each Party and Neither eBay nor any member of its applicable the members of the eBay Group has the sole right shall have any obligation to settle or otherwise resolve Third-Party Claims made against it secure extended reporting for any claims under any Liability policies of eBay or any member of its applicable the eBay Group covered under an applicable insurance policy. Notwithstanding anything in the foregoing to the contrary, Parent shall have the sole right to settle for any acts or otherwise resolve Third-Party Claims covered under a Designated Policy without the prior written consent of SpinCo unless such settlement (i) involves any admission, finding or determination of wrongdoing or violation of Law omissions by any member of the SpinCo PayPal Group or (ii) does not provide for a full, unconditional and irrevocable release of incurred prior to the applicable member(s) of the SpinCo Group from all Liability in connection with the Third-Party Claim, in which case Parent shall not settle or otherwise resolve such Third-Party Claims without the prior written consent of SpinCo (which consent may not be unreasonably withheld, delayed or conditioned)Effective Time.
(f) eBay shall, and shall cause the members of the eBay Group to, (i) use commercially reasonable efforts, at PayPal’s reasonable request (and provided that PayPal complies with the requirements of Section 5.1(b)), to assist PayPal in making claims under the eBay insurance policies described in Section 5.1(b), (ii) notify PayPal within thirty (30) days of any election by eBay to control any claim under an eBay insurance policy or program to the extent such claim relates to a PayPal Asset and/or PayPal Liability and (iii) promptly (and in any event within thirty (30) days after eBay’s receipt thereof) pay over to PayPal or the applicable member of the PayPal Group any Insurance Proceeds that are received by eBay or any member of the eBay Group in respect of such claims.
(g) This Agreement shall not be considered as an attempted assignment of any policy of insurance or as a contract of insurance and shall not be construed to waive any right or remedy of any member of the Parent eBay Group in respect of any insurance policy or any other contract or policy of insurance.
(gh) SpinCo PayPal does hereby, for itself and each other member of the SpinCo PayPal Group, agree that no member of the Parent eBay Group shall have any Liability whatsoever as a result of the insurance policies and practices of Parent eBay and the members of the Parent eBay Group as in effect at any time, including as a result of the level or scope of any such insurance, the creditworthiness of any insurance carrier, the terms and conditions of any policy, or the adequacy or timeliness of any notice to any insurance carrier with respect to any claim or potential claim or otherwise.
Appears in 1 contract
Samples: Separation and Distribution Agreement (PayPal Holdings, Inc.)
Insurance Matters. (a) Parent Tech and SpinCo Fuels agree to cooperate in good faith to provide for an orderly transition of insurance coverage from the date hereof Execution Date through the Effective Time. In no event shall ParentTech, any other member of the Parent Tech Group or any Parent Tech Indemnitee have any Liability or obligation whatsoever to any member of the SpinCo Fuels Group in the event that any (i) insurance policy or other contract or policy of insurance policy related contract shall be terminated or otherwise cease to be in effect for any reason, shall be unavailable or inadequate to cover any Liability of any member of the SpinCo Fuels Group for any reason whatsoever or shall not be cancelled, not renewed or not extended beyond the current expiration date or (ii) any insurer declines, denies, delays or obstructs any claim paymentdate.
(b) From and after the Effective Time, SpinCo, any member of the SpinCo Group or any of their respective employees (including former or inactive employees) shall cease to be insured by, shall have no access or availability to or under, shall not be entitled to make claims on or under and shall not be entitled to claim benefits from or seek coverage under, and shall not have any rights to or under, any of Parent’s or any member of the Parent Group’s insurance policies or any of their respective self-insured programs in place prior to the Effective Time. With respect to claims on or under the policies provided on Schedule 5.1(b) (collectively, the “Designated Policies”) SpinCo:
(i) shall notify Parent, as promptly as practicable, of any incident, circumstance or occurrence that may lead to a claim made by Parent or any member of the Parent Group under a Designated Policy;
(ii) shall, and shall cause the other members of the SpinCo Group to, at SpinCo’s sole cost and expense, cooperate with and assist Parent and the members of the Parent Group and share such information as is necessary in order to permit Parent and the members of the Parent Group to manage and conduct the insurance matters contemplated by this Section 5.1, including with respect to any claims by Parent or any member of the Parent Group under any Designated Policy; and
(iii) shall exclusively bear (and neither Parent nor any members of the Parent Group shall have any obligation to repay or reimburse SpinCo or any member of the SpinCo Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts (including where any insurer declines, denies, delays or obstructs any claim payment) of all claims made with respect to any losses, damages and Liability incurred by any member of the SpinCo Group Fuels Group, or arising out of facts, events or circumstances occurring, prior to the Effective Time, Tech will provide Fuels with access to, and Fuels may, upon ten (10) days’ prior written notice to Tech, make claims under, Tech’s third-party insurance policies in place immediately prior to the Effective Time and Tech’s historical third-party policies of insurance, but solely to the extent that such policies provided coverage for Fuels Liabilities or Liabilities arising from or in connection with actions, inactions, events, omissions, conditions, facts or circumstances occurring or existing prior to the Effective Time, in each case relating to, arising out of or resulting from the Fuels Business, the Fuels Assets or the Fuels Liabilities; provided that such access to, and the right to make claims under, such insurance policies shall be subject to the terms and conditions of such insurance policies, including any limits on coverage or scope, any deductibles, self-insured retentions, loss reimbursements and other fees and expenses, and any retrospectively rated or other premium adjustments, resulting from such losses, damages or Liability. Any deductible, loss reimbursement, other fee or expense, or retrospectively rated or other premium adjustment, resulting from such losses, damages or Liability shall be Fuels’ sole responsibility. Fuels’ access shall be subject to the following additional conditions:
(i) Fuels shall report any claim to Tech, as promptly as practicable, and in any event in sufficient time so that such claim may be made in accordance with Tech’s claim reporting procedures in effect immediately prior to the Effective Time (or in accordance with any modifications to such procedures after the Effective Time communicated by Tech to Fuels in writing);
(ii) Fuels may, in its sole discretion, report such claim to the insurers on its and/or Fuels’ behalf with a request that the insurers defend and indemnify it and/or Fuels;
(iii) Fuels and the members of the Fuels Group shall indemnify, hold harmless and reimburse Tech and the members of the Tech Group for any fees and expenses incurred by Tech or any members of the Tech Group to the extent resulting from any access to, any claims made by Fuels or any other members of the Fuels Group under, any insurance provided pursuant to this Section 4.01(b), including any indemnity payments, settlements, judgments, legal fees and allocated claim or loss adjusting expenses and claim handling fees, whether such claims are made by Fuels, its employees or Third Parties; and
(iv) Fuels shall exclusively bear (and neither Tech nor any members of the Tech Group shall have any obligation to repay or reimburse Fuels or any member of the Fuels Group for) and shall be liable for all uninsured, uncovered, unavailable or uncollectible amounts of all such claims made by Fuels or any member of the Fuels Group under the Designated Policiespolicies as provided for in this Section 4.01(b).
(c) In the event that any member of the Tech Group incurs any losses, damages or Liability prior to or in respect of the period prior to the Effective Time for which such member of the Tech Group is entitled to coverage under Fuels’ third-party insurance policies, the same process pursuant to this Section 4.01(b) shall apply, substituting “Tech” for “Fuels” and “Fuels” for “Tech.”
(d) Except as provided in Section 4.01(b), from and after the Effective Time, neither Fuels nor any member of the Fuels Group shall have any rights to or under any of the insurance policies of Tech or any other member of the Tech Group. At the Effective Time, SpinCo Fuels shall have in effect all insurance programs required to comply with SpinCo’s Fuels’ contractual obligations and such other Policies insurance policies required by Law or as reasonably necessary or appropriate for companies operating a business similar to SpinCo’sFuels’. Such insurance programs may include general liability, commercial auto liability, workers’ compensation, employer’s liability, cyber security, product liability, professional services liability, property, open lot, employment practices liability, employee dishonesty/crime, directors’ and officers’ liability and fiduciary liability.
(de) Neither SpinCo Fuels nor any member of the SpinCo Fuels Group, in connection with any making a claim under any insurance policy of Parent Tech or any member of the Parent Tech Group (including the Designated Policies)pursuant to this Section 4.01, shall take any action that would be reasonably likely to (i) have a materially an adverse impact on the then-current relationship between Parent Tech or any member of the Parent Tech Group, on the one hand, and the applicable insurance company, on the other hand; , (ii) result in the applicable insurance company terminating or materially reducing coverage, or materially increasing the amount of any premium owed by Parent Tech or any member of the Parent Tech Group under the applicable insurance policy; , or (iii) otherwise compromise, jeopardize or interfere in any material respect with the rights of Parent Tech or any member of the Parent Tech Group under the applicable insurance policy.
(ef) Parent All payments and reimbursements by Fuels pursuant to this Section 4.01 will be made within thirty (30) days after Fuels’ receipt of an invoice therefor from Tech. If Tech incurs costs to enforce Fuels’ obligations herein, Fuels agrees to indemnify and hold harmless Tech for such enforcement costs, including reasonable attorneys’ fees pursuant to Section 3.06. Tech shall retain the exclusive right to control its insurance policies and programs, including the right under the policies or applicable law to settle the policies to which losses or claim expenses are allocated, to exhaust, settle, release, commute, buy-back or otherwise resolve disputes with respect to any of its insurance policies and programs and to amend, modify or waive any rights under any such insurance policies and programs, notwithstanding whether any such policies or programs apply to any Fuels Liabilities and/or claims Fuels has made or could make in the future, and no member of the SpinCo Fuels Group shall allocate losses or claims or loss adjusting expenses to, or erode, exhaust, settle, release, commute, buy-back or otherwise resolve disputes with ParentTech’s insurers with respect to any of ParentTech’s insurance policies and programs, or amend, modify or waive any rights under any such insurance policies and programs. SpinCo Fuels shall cooperate with Parent Tech and share such information as is reasonably necessary in order to permit Parent Tech to manage and conduct its insurance matters as Parent it deems appropriate. Each Party and Tech shall share such information with Fuels as is reasonably necessary to enable Fuels so to cooperate with Tech. Except as otherwise expressly provided in this Agreement, neither Tech nor any member of its applicable the members of the Tech Group has the sole right shall have any obligation to settle or otherwise resolve Third-Party Claims made against it secure extended reporting for any claims under any liability policies of Tech or any member of its applicable the Tech Group covered under an applicable insurance policy. Notwithstanding anything in the foregoing to the contrary, Parent shall have the sole right to settle for any acts or otherwise resolve Third-Party Claims covered under a Designated Policy without the prior written consent of SpinCo unless such settlement (i) involves any admission, finding or determination of wrongdoing or violation of Law omissions by any member of the SpinCo Fuels Group or (ii) does not provide for a full, unconditional and irrevocable release of incurred prior to the applicable member(s) of the SpinCo Group from all Liability in connection with the Third-Party Claim, in which case Parent shall not settle or otherwise resolve such Third-Party Claims without the prior written consent of SpinCo (which consent may not be unreasonably withheld, delayed or conditioned)Effective Time.
(fg) This Agreement shall not be considered as an attempted assignment of any policy of insurance or as a contract of insurance and shall not be construed to waive any right or remedy of any member of the Parent Tech Group in respect of any insurance policy or any other contract or policy of insurance.
(gh) SpinCo Fuels does hereby, for itself and each other member of the SpinCo Fuels Group, agree that no member of the Parent Tech Group shall have any Liability whatsoever as a result of the insurance policies and practices of Parent Tech and the members of the Parent Tech Group as in effect at any time, including as a result of the level or scope of any such insurance, the creditworthiness of any insurance carrier, the terms and conditions of any policy, or the adequacy or timeliness of any notice to any insurance carrier with respect to any claim or potential claim or otherwise.
Appears in 1 contract
Samples: Master Distribution Agreement (Taronis Fuels, Inc.)
Insurance Matters. (a) Parent Rayonier and SpinCo agree to cooperate in good faith to provide for an orderly transition of insurance coverage from the date hereof through the Effective Time. In no event shall ParentRayonier, any other member of the Parent Rayonier Group or any Parent Rayonier Indemnitee have Liability or obligation whatsoever to any member of the SpinCo Group in the event that any (i) insurance policy or other contract or policy of insurance policy related contract shall be terminated or otherwise cease to be in effect for any reason, shall be unavailable or inadequate to cover any Liability of any member of the SpinCo Group for any reason whatsoever or shall not be cancelled, not renewed or not extended beyond the current expiration date or (ii) any insurer declines, denies, delays or obstructs any claim paymentdate.
(b) From and after the Effective Time, SpinCowith respect to any losses, damages and Liability incurred by any member of the SpinCo Group or any of their respective employees (including former or inactive employees) shall cease to be insured by, shall have no access or availability to or under, shall not be entitled to make claims on or under and shall not be entitled to claim benefits from or seek coverage under, and shall not have any rights to or under, any of Parent’s or any member of the Parent Group’s insurance policies or any of their respective self-insured programs in place prior to the Effective Time. With respect , Rayonier will provide SpinCo with access to, and SpinCo may, upon ten (10) days’ prior written notice to Rayonier, make claims on or under under, Rayonier’s third-party insurance policies in place immediately prior to the Effective Time and Rayonier’s historical policies of insurance, but solely to the extent that such policies provided coverage for members of the SpinCo Group prior to the Effective Time; provided that such access to, and the right to make claims under, such insurance policies, shall be subject to the terms and conditions of such insurance policies, including any limits on Schedule 5.1(b) (collectivelycoverage or scope, any deductibles and other fees and expenses, and shall be subject to the “Designated Policies”) SpinCofollowing additional conditions:
(i) SpinCo shall notify Parentreport any claim to Rayonier, as promptly as practicable, of and in any incident, circumstance event in sufficient time so that such claim may be made in accordance with Rayonier’s claim reporting procedures in effect immediately prior to the Effective Time (or occurrence that may lead in accordance with any modifications to a claim made such procedures after the Effective Time communicated by Parent or any member of the Parent Group under a Designated PolicyRayonier to SpinCo in writing);
(ii) shallSpinCo and the members of the SpinCo Group shall indemnify, hold harmless and shall cause reimburse Rayonier and the members of the Rayonier Group for any deductibles, self-insured retention, fees and expenses incurred by Rayonier or any members of the Rayonier Group to the extent resulting from any access to, any claims made by SpinCo or any other members of the SpinCo Group tounder, at SpinCo’s sole cost and expense, cooperate with and assist Parent and the members of the Parent Group and share such information as is necessary in order any insurance provided pursuant to permit Parent and the members of the Parent Group to manage and conduct the insurance matters contemplated by this Section 5.15.1(b), including with respect to any indemnity payments, settlements, judgments, legal fees and allocated claims expenses and claim handling fees, whether such claims are made by Parent SpinCo, its employees or any member of the Parent Group under any Designated Policythird Persons; and
(iii) SpinCo shall exclusively bear (and neither Parent Rayonier nor any members of the Parent Rayonier Group shall have any obligation to repay or reimburse SpinCo or any member of the SpinCo Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts (including where any insurer declines, denies, delays or obstructs any claim payment) of all such claims made with respect to any losses, damages and Liability incurred by SpinCo or any member of the SpinCo Group under the policies as provided for in this Section 5.1(b). In the event an insurance policy aggregate is exhausted, or believed likely to be exhausted, due to noticed claims, the SpinCo Group, on the one hand, and the Rayonier Group, on the other hand, shall be responsible for their pro rata portion of the reinstatement premium, if any, based upon the losses of such Group submitted to Rayonier’s insurance carrier(s) (including any submissions prior to the Effective Time). To the extent that the Rayonier Group or the SpinCo Group is allocated more than its pro rata portion of such premium due to the timing of losses submitted to Rayonier’s insurance carrier(s), the other party shall promptly pay the first party an amount so that each Group has been properly allocated its pro rata portion of the reinstatement premium. Subject to the following sentence, Rayonier may elect not to reinstate the policy aggregate. In the event that Rayonier elects not to reinstate the policy aggregate, it shall provide prompt written notice to SpinCo, and SpinCo may direct Rayonier in writing to, and Rayonier shall, in such case, reinstate the policy aggregate; provided that SpinCo shall be responsible for all reinstatement premiums and other costs associated with such reinstatement. In the event that any member of the Rayonier Group incurs any losses, damages or Liability prior to or in respect of the period prior to the Effective Time for which such member of the Rayonier Group is entitled to coverage under SpinCo’s third-party insurance policies, the Designated Policiessame process pursuant to this Section 5.1(b) shall apply, substituting “Rayonier” for “SpinCo” and “SpinCo” for “Rayonier.”
(c) Except as provided in Section 5.1(b), from and after the Effective Time, neither SpinCo nor any member of the SpinCo Group shall have any rights to or under any of the insurance policies of Rayonier or any other member of the Rayonier Group. At the Effective Time, SpinCo shall have in effect all insurance programs required to comply with SpinCo’s contractual obligations and such other Policies insurance policies required by Law or as reasonably necessary or appropriate for companies operating a business similar to SpinCo’s. Such insurance programs may include general liability, commercial auto liability, workers’ compensation, employer’s liability, product liability, professional services liability, property, cargo, employment practices liability, employee dishonesty/crime, directors’ and officers’ liability and fiduciary liability.
(d) Neither SpinCo nor any member of the SpinCo Group, in connection with any making a claim under any insurance policy of Parent Rayonier or any member of the Parent Rayonier Group (including the Designated Policies)pursuant to this Section 5.1, shall take any action that would be reasonably likely to (i) have a materially an adverse impact on the then-current relationship between Parent Rayonier or any member of the Parent Rayonier Group, on the one hand, and the applicable insurance company, on the other hand; (ii) result in the applicable insurance company terminating or materially reducing coverage, or materially increasing the amount of any premium owed by Parent Rayonier or any member of the Parent Rayonier Group under the applicable insurance policy; or (iii) otherwise compromise, jeopardize or interfere in any material respect with the rights of Parent Rayonier or any member of the Parent Rayonier Group under the applicable insurance policy.
(e) Parent All payments and reimbursements by SpinCo pursuant to this Section 5.1 will be made within fifteen (15) days after SpinCo’s receipt of an invoice therefor from Rayonier. If Rayonier incurs costs to enforce SpinCo’s obligations herein, SpinCo agrees to indemnify and hold harmless Rayonier for such enforcement costs, including reasonable attorneys’ fees pursuant to Section 4.6(b). Rayonier shall retain the exclusive right to control its insurance policies and programs, including the right to exhaust, settle, release, commute, buy-back or otherwise resolve disputes with respect to any of its insurance policies and programs and to amend, modify or waive any rights under any such insurance policies and programs, notwithstanding whether any such policies or programs apply to any SpinCo Liabilities and/or claims SpinCo has made or could make in the future, and no member of the SpinCo Group shall erode, exhaust, settle, release, commute, buy-back buyback or otherwise resolve disputes with ParentRayonier’s insurers with respect to any of ParentRayonier’s insurance policies and programs, or amend, modify or waive any rights under any such insurance policies and programs. SpinCo shall cooperate with Parent Rayonier and share such information as is reasonably necessary in order to permit Parent Rayonier to manage and conduct its insurance matters as Parent it deems appropriate. Each Party and Neither Rayonier nor any member of its applicable the members of the Rayonier Group has the sole right shall have any obligation to settle or otherwise resolve Third-Party Claims made against it secure extended reporting for any claims under any Liability policies of Rayonier or any member of its applicable the Rayonier Group covered under an applicable insurance policy. Notwithstanding anything in the foregoing to the contrary, Parent shall have the sole right to settle for any acts or otherwise resolve Third-Party Claims covered under a Designated Policy without the prior written consent of SpinCo unless such settlement (i) involves any admission, finding or determination of wrongdoing or violation of Law omissions by any member of the SpinCo Group or (ii) does not provide for a full, unconditional and irrevocable release of incurred prior to the applicable member(s) of the SpinCo Group from all Liability in connection with the Third-Party Claim, in which case Parent shall not settle or otherwise resolve such Third-Party Claims without the prior written consent of SpinCo (which consent may not be unreasonably withheld, delayed or conditioned)Effective Time.
(f) This Agreement shall not be considered as an attempted assignment of any policy of insurance or as a contract of insurance and shall not be construed to waive any right or remedy of any member of the Parent Rayonier Group in respect of any insurance policy or any other contract or policy of insurance.
(g) SpinCo does hereby, for itself and each other member of the SpinCo Group, agree that no member of the Parent Rayonier Group shall have any Liability whatsoever as a result of the insurance policies and practices of Parent Rayonier and the members of the Parent Rayonier Group as in effect at any time, including as a result of the level or scope of any such insurance, the creditworthiness of any insurance carrier, the terms and conditions of any policy, or the adequacy or timeliness of any notice to any insurance carrier with respect to any claim or potential claim or otherwise.
Appears in 1 contract
Samples: Separation and Distribution Agreement (Rayonier Holding Co)
Insurance Matters. (a) Parent and SpinCo agree to cooperate in good faith to provide for an orderly transition of insurance coverage from the date hereof through the Effective Time. In no event shall Parent, any other member of the Parent Group or any Parent Indemnitee have Liability or obligation whatsoever to any member of the SpinCo Group in the event that any (i) insurance policy Policies or insurance policy policy-related contract shall be terminated or otherwise cease to be in effect for any reason, shall be unavailable or inadequate to cover any Liability of any member of the SpinCo Group for any reason whatsoever or shall not be cancelled, not renewed or not extended beyond the current expiration date or (ii) any insurer declines, denies, delays or obstructs any claim paymentdate.
(b) From Except as provided on Schedule 5.1(b) or Schedule 5.1(c), from and after the Effective Time, SpinCo, with respect to any Liability incurred prior to the Effective Time by any member of the SpinCo Group or any of their respective employees (including former or inactive employees) shall cease to be insured byGroup, shall have no Parent will provide SpinCo with access or availability to or to, and SpinCo may make claims under, shall not be entitled to make claims on or under and shall not be entitled to claim benefits from or seek coverage under, and shall not have any rights to or under, any of Parent’s or any member of the Parent Group’s insurance policies or any of their respective self-insured programs in place immediately prior to the Effective Time (and any extended reporting for claims made policies) and Parent’s historical policies of insurance, but solely to the extent that such policies provided coverage for members of the SpinCo Group or the SpinCo Business prior to the Effective Time. With respect ; provided that such access to, and the right to make claims under, such insurance policies, shall be subject to the terms, conditions and exclusions of such insurance policies, including but not limited to any limits on coverage or under scope, any deductibles, self-insured retentions and other fees and expenses, and shall be subject to the policies provided on Schedule 5.1(b) (collectively, the “Designated Policies”) SpinCofollowing additional conditions:
(i) SpinCo shall notify Parent, as promptly as practicable, of any incident, circumstance or occurrence that may lead to a claim made by Parent or any member of the Parent Group under a Designated PolicySpinCo pursuant to this Section 5.1(b);
(ii) shall, SpinCo and shall cause the other members of the SpinCo Group toshall indemnify, at SpinCo’s sole cost hold harmless and expense, cooperate with and assist reimburse Parent and the members of the Parent Group for any deductibles, self-insured retention, fees, indemnity payments, settlements, judgments, legal fees, allocated claims expenses and share such information as is necessary in order to permit claim handling fees, and other expenses incurred by Parent and the or any members of the Parent Group to manage and conduct the extent resulting from any access to, or any claims made by SpinCo or any other members of the SpinCo Group under, any insurance matters contemplated by provided pursuant to this Section 5.15.1(b), including with respect to any whether such claims are made by Parent SpinCo, its employees or any member of the Parent Group under any Designated Policythird Persons; and
(iii) SpinCo shall exclusively bear (and neither Parent nor any members of the Parent Group shall have any obligation to repay or reimburse SpinCo or any member of the SpinCo Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts (including where any insurer declines, denies, delays or obstructs any claim payment) of all such claims made with respect to any losses, damages and Liability incurred by SpinCo or any member of the SpinCo Group prior to the Effective Time under the Designated Policies.
(c) At policies as provided for in this Section 5.1(b). In the Effective Timeevent an insurance policy aggregate is exhausted, SpinCo shall have in effect all insurance programs required or believed likely to comply with SpinCo’s contractual obligations and such other Policies required by Law or as reasonably necessary or appropriate for companies operating a business similar be exhausted, due to SpinCo’s.
(d) Neither SpinCo nor any member of noticed claims, the SpinCo Group, in connection with any claim under any insurance policy of Parent or any member of the Parent Group (including the Designated Policies), shall take any action that would be reasonably likely to (i) have a materially adverse impact on the then-current relationship between Parent or any member of the Parent Group, on the one hand, and the applicable insurance companyParent Group, on the other hand; , shall be responsible for their pro rata portion of the reinstatement premium, if any, based upon the losses of such Group submitted to Parent’s insurance carrier(s) (iiincluding any submissions prior to the Effective Time). To the extent that the Parent Group or the SpinCo Group is allocated more than its pro rata portion of such premium due to the timing of losses submitted to Parent’s insurance carrier(s), the other party shall promptly pay the first party an amount so that each Group has been properly allocated its pro rata portion of the reinstatement premium. Subject to the following sentence, a Party may elect not to reinstate the policy aggregate. In the event that a Party elects not to reinstate the policy aggregate, it shall provide prompt written notice to the other Party. A Party which elects to reinstate the policy aggregate shall be responsible for all reinstatement premiums and other costs associated with such reinstatement.
(iv) result in In the applicable insurance company terminating or materially reducing coverage, or materially increasing the amount of any premium owed by Parent or event that any member of the Parent Group under incurs any Liability prior to or in respect of the applicable insurance policy; or (iii) otherwise compromise, jeopardize or interfere in any material respect with period prior to the rights of Parent or any Effective Time for which such member of the Parent Group is entitled to coverage under the applicable SpinCo’s third-party insurance policy.
(e) Parent shall retain the exclusive right to control its insurance policies and programs, including the right to exhaust, settle, release, commute, buy-back or otherwise resolve disputes with respect to any of its insurance policies and programs and to amend, modify or waive any rights under any such insurance policies and programs and no member of the SpinCo Group shall erode, exhaust, settle, release, commute, buy-back or otherwise resolve disputes with Parent’s insurers with respect to any of Parent’s insurance policies and programs, or amend, modify or waive any rights under any such insurance policies and programs. SpinCo shall cooperate with Parent and share such information as is necessary in order to permit Parent to manage and conduct its insurance matters as Parent deems appropriate. Each Party and any member of its applicable Group has the sole right to settle or otherwise resolve Third-Party Claims made against it or any member of its applicable Group covered under an applicable insurance policy. Notwithstanding anything in the foregoing to the contrary, Parent shall have the sole right to settle or otherwise resolve Third-Party Claims covered under a Designated Policy without the prior written consent of SpinCo unless such settlement (i) involves any admission, finding or determination of wrongdoing or violation of Law by any member of the SpinCo Group or (ii) does not provide for a full, unconditional and irrevocable release of the applicable member(s) of the SpinCo Group from all Liability in connection with the Third-Party Claim, in which case Parent shall not settle or otherwise resolve such Third-Party Claims without the prior written consent of SpinCo (which consent may not be unreasonably withheld, delayed or conditioned).
(f) This Agreement shall not be considered as an attempted assignment of any policy of insurance or as a contract of insurance and shall not be construed to waive any right or remedy of any member of the Parent Group in respect of any insurance policy or any other contract or policy of insurance.
(g) SpinCo does hereby, for itself and each other member of the SpinCo Group, agree that no member of the Parent Group shall have any Liability whatsoever as a result of the insurance policies and practices of Parent and the members of the Parent Group as in effect at any time, including as a result of the level or scope of any such insurancepolicies, the creditworthiness of any insurance carriersame process pursuant to this Section 5.1(b) shall apply, the terms and conditions of any policy, or the adequacy or timeliness of any notice to any insurance carrier with respect to any claim or potential claim or otherwise.substituting
Appears in 1 contract
Samples: Separation and Distribution Agreement (Equitrans Midstream Corp)
Insurance Matters. (a) Parent and SpinCo agree to cooperate in good faith to provide for an orderly transition of insurance coverage from the date hereof through the Effective Time. In no event shall Parent, any other member of the Parent Group or any Parent Indemnitee have Liability or obligation whatsoever to any member of the SpinCo Group in the event that any (i) insurance policy Policies or insurance policy policy-related contract shall be terminated or otherwise cease to be in effect for any reason, shall be unavailable or inadequate to cover any Liability of any member of the SpinCo Group for any reason whatsoever or shall not be cancelled, not renewed or not extended beyond the current expiration date or (ii) any insurer declines, denies, delays or obstructs any claim paymentdate.
(b) From Except as provided on Schedule (), from and after the Effective Time, SpinCo, with respect to any Liability incurred prior to the Effective Time by any member of the SpinCo Group or any of their respective employees (including former or inactive employees) shall cease to be insured byGroup, shall have no Parent will provide SpinCo with access or availability to or to, and SpinCo may make claims under, shall not be entitled to make claims on or under and shall not be entitled to claim benefits from or seek coverage under, and shall not have any rights to or under, any of Parent’s or any member of the Parent Group’s insurance policies or any of their respective self-insured programs in place immediately prior to the Effective Time (and any extended reporting for claims made policies) and Parent’s historical policies of insurance, but solely to the extent that such policies provided coverage for members of the SpinCo Group or the SpinCo Business prior to the Effective Time. With respect ; provided that such access to, and the right to make claims under, such insurance policies, shall be subject to the terms, conditions and exclusions of such insurance policies, including but not limited to any limits on coverage or under scope, any deductibles, self-insured retentions and other fees and expenses, and shall be subject to the policies provided on Schedule 5.1(b) (collectively, the “Designated Policies”) SpinCofollowing additional conditions:
(i) SpinCo shall notify Parent, as promptly as practicable, of any incident, circumstance or occurrence that may lead to a claim made by Parent or any member of the Parent Group under a Designated PolicySpinCo pursuant to this Section 5.1(b);
(ii) shall, SpinCo and shall cause the other members of the SpinCo Group toshall indemnify, at SpinCo’s sole cost hold harmless and expense, cooperate with and assist reimburse Parent and the members of the Parent Group for any deductibles, self-insured retention, fees, indemnity payments, settlements, judgments, legal fees, allocated claims expenses and share such information as is necessary in order to permit claim handling fees, and other expenses incurred by Parent and the or any members of the Parent Group to manage and conduct the extent resulting from any access to, or any claims made by SpinCo or any other members of the SpinCo Group under, any insurance matters contemplated by provided pursuant to this Section 5.15.1(b), including with respect to any whether such claims are made by Parent SpinCo, its employees or any member of the Parent Group under any Designated Policythird Persons; and
(iii) SpinCo shall exclusively bear (and neither Parent nor any members of the Parent Group shall have any obligation to repay or reimburse SpinCo or any member of the SpinCo Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts (including where any insurer declines, denies, delays or obstructs any claim payment) of all such claims made with respect to any losses, damages and Liability incurred by SpinCo or any member of the SpinCo Group prior to the Effective Time under the Designated Policies.
(c) At policies as provided for in this Section 5.1(b). In the Effective Timeevent an insurance policy aggregate is exhausted, SpinCo shall have in effect all insurance programs required or believed likely to comply with SpinCo’s contractual obligations and such other Policies required by Law or as reasonably necessary or appropriate for companies operating a business similar be exhausted, due to SpinCo’s.
(d) Neither SpinCo nor any member of noticed claims, the SpinCo Group, in connection with any claim under any insurance policy of Parent or any member of the Parent Group (including the Designated Policies), shall take any action that would be reasonably likely to (i) have a materially adverse impact on the then-current relationship between Parent or any member of the Parent Group, on the one hand, and the applicable insurance companyParent Group, on the other hand; , shall be responsible for their pro rata portion of the reinstatement premium, if any, based upon the losses of such Group submitted to Parent’s insurance carrier(s) (iiincluding any submissions prior to the Effective Time). To the extent that the Parent Group or the SpinCo Group is allocated more than its pro rata portion of such premium due to the timing of losses submitted to Parent’s insurance carrier(s), the other party shall promptly pay the first party an amount so that each Group has been properly allocated its pro rata portion of the reinstatement premium. Subject to the following sentence, a Party may elect not to reinstate the policy aggregate. In the event that a Party elects not to reinstate the policy aggregate, it shall provide prompt written notice to the other Party. A Party which elects to reinstate the policy aggregate shall be responsible for all reinstatement premiums and other costs associated with such reinstatement.
(iv) result in In the applicable insurance company terminating or materially reducing coverage, or materially increasing the amount of any premium owed by Parent or event that any member of the Parent Group under incurs any Liability prior to or in respect of the applicable insurance policy; or (iii) otherwise compromise, jeopardize or interfere in any material respect with period prior to the rights of Parent or any Effective Time for which such member of the Parent Group is entitled to coverage under the applicable SpinCo’s third-party insurance policy.
(e) Parent shall retain the exclusive right to control its insurance policies and programs, including the right to exhaust, settle, release, commute, buy-back or otherwise resolve disputes with respect to any of its insurance policies and programs and to amend, modify or waive any rights under any such insurance policies and programs and no member of the SpinCo Group shall erode, exhaust, settle, release, commute, buy-back or otherwise resolve disputes with Parent’s insurers with respect to any of Parent’s insurance policies and programs, or amend, modify or waive any rights under any such insurance policies and programs. SpinCo shall cooperate with Parent and share such information as is necessary in order to permit Parent to manage and conduct its insurance matters as Parent deems appropriate. Each Party and any member of its applicable Group has the sole right to settle or otherwise resolve Third-Party Claims made against it or any member of its applicable Group covered under an applicable insurance policy. Notwithstanding anything in the foregoing to the contrary, Parent shall have the sole right to settle or otherwise resolve Third-Party Claims covered under a Designated Policy without the prior written consent of SpinCo unless such settlement (i) involves any admission, finding or determination of wrongdoing or violation of Law by any member of the SpinCo Group or (ii) does not provide for a full, unconditional and irrevocable release of the applicable member(s) of the SpinCo Group from all Liability in connection with the Third-Party Claim, in which case Parent shall not settle or otherwise resolve such Third-Party Claims without the prior written consent of SpinCo (which consent may not be unreasonably withheld, delayed or conditioned).
(f) This Agreement shall not be considered as an attempted assignment of any policy of insurance or as a contract of insurance and shall not be construed to waive any right or remedy of any member of the Parent Group in respect of any insurance policy or any other contract or policy of insurance.
(g) SpinCo does hereby, for itself and each other member of the SpinCo Group, agree that no member of the Parent Group shall have any Liability whatsoever as a result of the insurance policies and practices of Parent and the members of the Parent Group as in effect at any time, including as a result of the level or scope of any such insurancepolicies, the creditworthiness of any insurance carriersame process pursuant to this Section 5.1(b) shall apply, the terms and conditions of any policy, or the adequacy or timeliness of any notice to any insurance carrier with respect to any claim or potential claim or otherwise.substituting
Appears in 1 contract
Samples: Separation and Distribution Agreement (Equitrans Midstream Corp)
Insurance Matters. (a) Parent and SpinCo agree to cooperate in good faith to provide for an orderly transition of insurance coverage from the date hereof through the Effective Time. In no event shall Parent, any other member of the Parent Group or any Parent Indemnitee have Liability or obligation whatsoever to any member of the SpinCo Group in the event that any (i) insurance policy Policies or insurance policy policy-related contract shall be terminated or otherwise cease to be in effect for any reason, shall be unavailable or inadequate to cover any Liability of any member of the SpinCo Group for any reason whatsoever or shall not be cancelled, not renewed or not extended beyond the current expiration date or (ii) any insurer declines, denies, delays or obstructs any claim paymentdate.
(b) From Except as provided on Schedule 5.1(b), from and after the Effective Time, SpinCo, with respect to any Liability incurred prior to the Effective Time by any member of the SpinCo Group or any of their respective employees (including former or inactive employees) shall cease to be insured by44 Group, shall have no Parent will provide SpinCo with access or availability to or to, and SpinCo may make claims under, shall not be entitled to make claims on or under and shall not be entitled to claim benefits from or seek coverage under, and shall not have any rights to or under, any of Parent’s or any member of the Parent Group’s insurance policies or any of their respective self-insured programs in place immediately prior to the Effective Time (and any extended reporting for claims made policies) and Parent’s historical policies of insurance, but solely to the extent that such policies provided coverage for members of the SpinCo Group or the SpinCo Business prior to the Effective Time. With respect ; provided that such access to, and the right to make claims under, such insurance policies, shall be subject to the terms, conditions and exclusions of such insurance policies, including but not limited to any limits on coverage or under scope, any deductibles, self-insured retentions and other fees and expenses, and shall be subject to the policies provided on Schedule 5.1(b) (collectively, the “Designated Policies”) SpinCofollowing additional conditions:
(i) SpinCo shall notify Parent, as promptly as practicable, of any incident, circumstance or occurrence that may lead to a claim made by Parent or any member of the Parent Group under a Designated PolicySpinCo pursuant to this Section 5.1(b);
(ii) shall, SpinCo and shall cause the other members of the SpinCo Group toshall indemnify, at SpinCo’s sole cost hold harmless and expense, cooperate with and assist reimburse Parent and the members of the Parent Group for any deductibles, self-insured retention, fees, indemnity payments, settlements, judgments, legal fees, allocated claims expenses and share such information as is necessary in order to permit claim handling fees, and other expenses incurred by Parent and the or any members of the Parent Group to manage and conduct the extent resulting from any access to, or any claims made by SpinCo or any other members of the SpinCo Group under, any insurance matters contemplated by provided pursuant to this Section 5.15.1(b), including with respect to any whether such claims are made by Parent SpinCo, its employees or any member of the Parent Group under any Designated Policythird Persons; and
(iii) SpinCo shall exclusively bear (and neither Parent nor any members of the Parent Group shall have any obligation to repay or reimburse SpinCo or any member of the SpinCo Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts (including where any insurer declines, denies, delays or obstructs any claim payment) of all such claims made with respect to any losses, damages and Liability incurred by SpinCo or any member of the SpinCo Group prior to the Effective Time under the Designated Policies.
(c) At policies as provided for in this Section 5.1(b). In the Effective Timeevent an insurance policy aggregate is exhausted, SpinCo shall have in effect all insurance programs required or believed likely to comply with SpinCo’s contractual obligations and such other Policies required by Law or as reasonably necessary or appropriate for companies operating a business similar be exhausted, due to SpinCo’s.
(d) Neither SpinCo nor any member of noticed claims, the SpinCo Group, in connection with any claim under any insurance policy of Parent or any member of the Parent Group (including the Designated Policies), shall take any action that would be reasonably likely to (i) have a materially adverse impact on the then-current relationship between Parent or any member of the Parent Group, on the one hand, and the applicable insurance companyParent Group, on the other hand; , shall be responsible for their pro rata portion of the reinstatement premium, if any, based upon the losses of such Group submitted to Parent’s insurance carrier(s) (iiincluding any submissions prior to the Effective Time). To the extent that the Parent Group or the SpinCo Group is allocated more than its pro rata portion of such premium due to the timing of losses submitted to Parent’s insurance carrier(s), the other party shall promptly pay the first party an amount so that each Group has been properly allocated its pro rata portion of the reinstatement premium. Subject to the following sentence, a Party may elect not to reinstate the policy aggregate. In the event that a Party elects not to reinstate the policy aggregate, it shall provide prompt written notice to the other Party. A Party which elects to reinstate the policy aggregate shall be responsible for all reinstatement premiums and other costs associated with such reinstatement.
(iv) result in In the applicable insurance company terminating or materially reducing coverage, or materially increasing the amount of any premium owed by Parent or event that any member of the Parent Group under incurs any Liability prior to or in respect of the applicable insurance policy; or (iii) otherwise compromise, jeopardize or interfere in any material respect with period prior to the rights of Parent or any Effective Time for which such member of the Parent Group is entitled to coverage under the applicable SpinCo’s third-party insurance policy.
(e) Parent shall retain the exclusive right to control its insurance policies and programs, including the right to exhaust, settle, release, commute, buy-back or otherwise resolve disputes with respect to any of its insurance policies and programs and to amend, modify or waive any rights under any such insurance policies and programs and no member of the SpinCo Group shall erode, exhaust, settle, release, commute, buy-back or otherwise resolve disputes with Parent’s insurers with respect to any of Parent’s insurance policies and programs, or amend, modify or waive any rights under any such insurance policies and programs. SpinCo shall cooperate with Parent and share such information as is necessary in order to permit Parent to manage and conduct its insurance matters as Parent deems appropriate. Each Party and any member of its applicable Group has the sole right to settle or otherwise resolve Third-Party Claims made against it or any member of its applicable Group covered under an applicable insurance policy. Notwithstanding anything in the foregoing to the contrary, Parent shall have the sole right to settle or otherwise resolve Third-Party Claims covered under a Designated Policy without the prior written consent of SpinCo unless such settlement (i) involves any admission, finding or determination of wrongdoing or violation of Law by any member of the SpinCo Group or (ii) does not provide for a full, unconditional and irrevocable release of the applicable member(s) of the SpinCo Group from all Liability in connection with the Third-Party Claim, in which case Parent shall not settle or otherwise resolve such Third-Party Claims without the prior written consent of SpinCo (which consent may not be unreasonably withheld, delayed or conditioned).
(f) This Agreement shall not be considered as an attempted assignment of any policy of insurance or as a contract of insurance and shall not be construed to waive any right or remedy of any member of the Parent Group in respect of any insurance policy or any other contract or policy of insurance.
(g) SpinCo does hereby, for itself and each other member of the SpinCo Group, agree that no member of the Parent Group shall have any Liability whatsoever as a result of the insurance policies and practices of Parent and the members of the Parent Group as in effect at any time, including as a result of the level or scope of any such insurancepolicies, the creditworthiness of any insurance carriersame process pursuant to this Section 5.1(b) shall apply, the terms and conditions of any policy, or the adequacy or timeliness of any notice to any insurance carrier with respect to any claim or potential claim or otherwise.substituting 45
Appears in 1 contract
Insurance Matters. (a) Parent Rayonier and SpinCo agree to cooperate in good faith to provide for an orderly transition of insurance coverage from the date hereof through the Effective Time. In no event shall ParentRayonier, any other member of the Parent Rayonier Group or any Parent Rayonier Indemnitee have Liability or obligation whatsoever to any member of the SpinCo Group in the event that any (i) insurance policy or other contract or policy of insurance policy related contract shall be terminated or otherwise cease to be in effect for any reason, shall be unavailable or inadequate to cover any Liability of any member of the SpinCo Group for any reason whatsoever or shall not be cancelled, not renewed or not extended beyond the current expiration date or (ii) any insurer declines, denies, delays or obstructs any claim paymentdate.
(b) From and after the Effective Time, SpinCowith respect to any losses, damages and Liability incurred by any member of the SpinCo Group or any of their respective employees (including former or inactive employees) shall cease to be insured by, shall have no access or availability to or under, shall not be entitled to make claims on or under and shall not be entitled to claim benefits from or seek coverage under, and shall not have any rights to or under, any of Parent’s or any member of the Parent Group’s insurance policies or any of their respective self-insured programs in place prior to the Effective Time. With respect , Rayonier will provide SpinCo with access to, and SpinCo may, upon ten (10) days’ prior written notice to Rayonier, make claims on or under under, Rayonier’s third-party insurance policies in place immediately prior to the Effective Time and Rayonier’s historical policies of insurance, but solely to the extent that such policies provided coverage for members of the SpinCo Group prior to the Effective Time; provided that such access to, and the right to make claims under, such insurance policies, shall be subject to the terms and conditions of such insurance policies, including any limits on Schedule 5.1(b) (collectivelycoverage or scope, any deductibles and other fees and expenses, and shall be subject to the “Designated Policies”) SpinCofollowing additional conditions:
(i) SpinCo shall notify Parentreport any claim to Rayonier, as promptly as practicable, of and in any incident, circumstance event in sufficient time so that such claim may be made in accordance with Rayonier’s claim reporting procedures in effect immediately prior to the Effective Time (or occurrence that may lead in accordance with any modifications to a claim made such procedures after the Effective Time communicated by Parent or any member of the Parent Group under a Designated PolicyRayonier to SpinCo in writing);
(ii) shallSpinCo and the members of the SpinCo Group shall indemnify, hold harmless and shall cause reimburse Rayonier and the members of the Rayonier Group for any deductibles, self-insured retention, fees and expenses incurred by Rayonier or any members of the Rayonier Group to the extent resulting from any access to, any claims made by SpinCo or any other members of the SpinCo Group tounder, at SpinCo’s sole cost and expense, cooperate with and assist Parent and the members of the Parent Group and share such information as is necessary in order any insurance provided pursuant to permit Parent and the members of the Parent Group to manage and conduct the insurance matters contemplated by this Section 5.15.1(b), including with respect to any indemnity payments, settlements, judgments, legal fees and allocated claims expenses and claim handling fees, whether such claims are made by Parent SpinCo, its employees or any member of the Parent Group under any Designated Policythird Persons; and
(iii) SpinCo shall exclusively bear (and neither Parent Rayonier nor any members of the Parent Rayonier Group shall have any obligation to repay or reimburse SpinCo or any member of the SpinCo Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts (including where any insurer declines, denies, delays or obstructs any claim payment) of all such claims made with respect to any losses, damages and Liability incurred by SpinCo or any member of the SpinCo Group under the policies as provided for in this Section 5.1(b). In the event an insurance policy aggregate is exhausted, or believed likely to be exhausted, due to noticed claims, the SpinCo Group, on the one hand, and the Rayonier Group, on the other hand, shall be responsible for their pro rata portion of the reinstatement premium, if any, based upon the losses of such Group submitted to Rayonier’s insurance carrier(s) (including any submissions prior to the Effective Time). To the extent that the Rayonier Group or the SpinCo Group is allocated more than its pro rata portion of such premium due to the timing of losses submitted to Rayonier’s insurance carrier(s), the other party shall promptly pay the first party an amount so that each Group has been properly allocated its pro rata portion of the reinstatement premium. Subject to the following sentence, Rayonier may elect not to reinstate the policy aggregate. In the event that Rayonier elects not to reinstate the policy aggregate, it shall provide prompt written notice to SpinCo, and SpinCo may direct Rayonier in writing to, and Rayonier shall, in such case, reinstate the policy aggregate; provided that SpinCo shall be responsible for all reinstatement premiums and other costs associated with such reinstatement. In the event that any member of the Rayonier Group incurs any losses, damages or Liability prior to or in respect of the period prior to the Effective Time for which such member of the Rayonier Group is entitled to coverage under SpinCo’s third-party insurance policies, the Designated Policiessame process pursuant to this Section 5.1(b) shall apply, substituting “Rayonier” for “SpinCo” and “SpinCo” for “Rayonier.”
(c) Except as provided in Section 5.1(b), from and after the Effective Time, neither SpinCo nor any member of the SpinCo Group shall have any rights to or under any of the insurance policies of Rayonier or any other member of the Rayonier Group. At the Effective Time, SpinCo shall have in effect all insurance programs required to comply with SpinCo’s contractual obligations and such other Policies insurance policies required by Law or as reasonably necessary or appropriate for companies operating a business similar to SpinCo’s. Such insurance programs may include general liability, commercial auto liability, workers’ compensation, employer’s liability, product liability, professional services liability, property, cargo, employment practices liability, employee dishonesty/crime, directors’ and officers’ liability and fiduciary liability.
(d) Neither SpinCo nor any member of the SpinCo Group, in connection with any making a claim under any insurance policy of Parent Rayonier or any member of the Parent Rayonier Group (including the Designated Policies)pursuant to this Section 5.1, shall take any action that would be reasonably likely to (i) have a materially an adverse impact on the then-current relationship between Parent Rayonier or any member of the Parent Rayonier Group, on the one hand, and the applicable insurance company, on the other hand; (ii) result in the applicable insurance company terminating or materially reducing coverage, or materially increasing the amount of any premium owed by Parent Rayonier or any member of the Parent Rayonier Group under the applicable insurance policy; or (iii) otherwise compromise, jeopardize or interfere in any material respect with the rights of Parent Rayonier or any member of the Parent Rayonier Group under the applicable insurance policy.
(e) Parent All payments and reimbursements by SpinCo pursuant to this Section 5.1 will be made within fifteen (15) days after SpinCo’s receipt of an invoice therefor from Rayonier. If Rayonier incurs costs to enforce SpinCo’s obligations herein, SpinCo agrees to indemnify and hold harmless Rayonier for such enforcement costs, including reasonable attorneys’ fees pursuant to Section 4.6. Rayonier shall retain the exclusive right to control its insurance policies and programs, including the right to exhaust, settle, release, commute, buy-back or otherwise resolve disputes with respect to any of its insurance policies and programs and to amend, modify or waive any rights under any such insurance policies and programs, notwithstanding whether any such policies or programs apply to any SpinCo Liabilities and/or claims SpinCo has made or could make in the future, and no member of the SpinCo Group shall erode, exhaust, settle, release, commute, buy-back buyback or otherwise resolve disputes with ParentRayonier’s insurers with respect to any of ParentRayonier’s insurance policies and programs, or amend, modify or waive any rights under any such insurance policies and programs. SpinCo shall cooperate with Parent Rayonier and share such information as is reasonably necessary in order to permit Parent Rayonier to manage and conduct its insurance matters as Parent it deems appropriate. Each Party and Neither Rayonier nor any member of its applicable the members of the Rayonier Group has the sole right shall have any obligation to settle or otherwise resolve Third-Party Claims made against it secure extended reporting for any claims under any Liability policies of Rayonier or any member of its applicable the Rayonier Group covered under an applicable insurance policy. Notwithstanding anything in the foregoing to the contrary, Parent shall have the sole right to settle for any acts or otherwise resolve Third-Party Claims covered under a Designated Policy without the prior written consent of SpinCo unless such settlement (i) involves any admission, finding or determination of wrongdoing or violation of Law omissions by any member of the SpinCo Group or (ii) does not provide for a full, unconditional and irrevocable release of incurred prior to the applicable member(s) of the SpinCo Group from all Liability in connection with the Third-Party Claim, in which case Parent shall not settle or otherwise resolve such Third-Party Claims without the prior written consent of SpinCo (which consent may not be unreasonably withheld, delayed or conditioned)Effective Time.
(f) This Agreement shall not be considered as an attempted assignment of any policy of insurance or as a contract of insurance and shall not be construed to waive any right or remedy of any member of the Parent Rayonier Group in respect of any insurance policy or any other contract or policy of insurance.
(g) SpinCo does hereby, for itself and each other member of the SpinCo Group, agree that no member of the Parent Rayonier Group shall have any Liability whatsoever as a result of the insurance policies and practices of Parent Rayonier and the members of the Parent Rayonier Group as in effect at any time, including as a result of the level or scope of any such insurance, the creditworthiness of any insurance carrier, the terms and conditions of any policy, or the adequacy or timeliness of any notice to any insurance carrier with respect to any claim or potential claim or otherwise.
Appears in 1 contract
Samples: Separation and Distribution Agreement (Rayonier Advanced Materials Inc.)
