THIS SECTION 9.2 SHALL BE THE SOLE AND
EXCLUSIVE REMEDY OF BREITBURN AND ANY OTHER BREITBURN INDEMNIFIED PARTIES FROM
AND AFTER CLOSING AGAINST QUICKSILVER, AT LAW, IN EQUITY OR OTHERWISE, RELATING
TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, ANY ALLEGED BREACH HEREOF) OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
(D)
CLAIM PROCEDURE. BREITBURN SHALL GIVE
QUICKSILVER PROMPT WRITTEN NOTICE OF ANY THIRD PARTY ACTION OR OTHER DAMAGES
CLAIMS WHICH MAY GIVE RISE TO ANY INDEMNITY OBLIGATION UNDER THIS SECTION 9.2,
TOGETHER WITH THE ESTIMATED AMOUNT OF SUCH ACTION OR DAMAGES, AND QUICKSILVER
SHALL HAVE THE RIGHT TO ASSUME THE DEFENSE OF ANY SUCH ACTION THROUGH COUNSEL OF
ITS OWN CHOOSING, BY SO NOTIFYING BREITBURN WITHIN SIXTY (60) DAYS OF RECEIPT OF
BREITBURN'S WRITTEN NOTICE; PROVIDED, HOWEVER, THAT QUICKSILVER'S COUNSEL SHALL
BE REASONABLY SATISFACTORY TO BREITBURN. FAILURE TO GIVE PROMPT NOTICE SHALL NOT
AFFECT THE INDEMNIFICATION OBLIGATIONS HEREUNDER IN THE ABSENCE OF ACTUAL
PREJUDICE. IF BREITBURN DESIRES TO PARTICIPATE IN, BUT NOT CONTROL, ANY SUCH
DEFENSE ASSUMED BY QUICKSILVER, IT MAY DO SO AT ITS SOLE COST AND EXPENSE. IF
QUICKSILVER DECLINES TO ASSUME ANY SUCH DEFENSE, IT SHALL BE LIABLE FOR ALL
REASONABLE COSTS AND EXPENSES OF DEFENDING SUCH ACTION INCURRED BY BREITBURN,
INCLUDING REASONABLE FEES AND DISBURSEMENTS OF COUNSEL IN THE EVENT IT IS
ULTIMATELY DETERMINED THAT QUICKSILVER IS LIABLE FOR SUCH ACTION PURSUANT TO THE
TERMS OF THIS AGREEMENT. IF QUICKSILVER HAS ASSUMED ANY SUCH DEFENSE, BUT
THEREAFTER QUICKSILVER HAS FAILED TO DILIGENTLY MAINTAIN SUCH DEFENSE, THEN
BREITBURN SHALL GIVE QUICKSILVER WRITTEN NOTICE THEREOF AND, IF QUICKSILVER DOES
NOT TAKE REASONABLE ACTION TO REMEDY SUCH FAILURE WITHIN THIRTY (30) DAYS AFTER
RECEIPT, THEN BREITBURN MAY ASSUME SUCH DEFENSE AND QUICKSILVER SHALL CONTINUE
TO BE LIABLE FOR ALL REASONABLE COSTS AND EXPENSES INCURRED IN DEFENDING SUCH
ACTIONS, PROVIDED THAT BREITBURN THEREAFTER DILIGENTLY MAINTAINS SUCH DEFENSE
AND IS COMMERCIALLY REASONABLE (GIVEN THE SIZE AND NATURE OF THE CLAIM INVOLVED)
IN THE MANNER OF DEFENSE AND THE COSTS AND EXPENSES INCURRED. QUICKSILVER SHALL
NOT, WITHOUT THE WRITTEN CONSENT OF A BREITBURN INDEMNIFIED PARTY, SETTLE ANY
ACTION OR CLAIM AGAINST SUCH BREITBURN INDEMNIFIED PARTY OR CONSENT TO THE ENTRY
OF ANY JUDGMENT WITH RESPECT THERETO THAT (I) DOES NOT RESULT IN A FINAL
RESOLUTION OF THE BREITBURN INDEMNIFIED PARTY'S LIABILITY WITH RESPECT TO SUCH
ACTION OR CLAIM (INCLUDING, IN THE CASE OF A SETTLEMENT, AN UNCONDITIONAL
WRITTEN RELEASE OF THE BREITBURN INDEMNIFIED PARTY FROM ALL FURTHER LIABILITY IN
RESPECT OF SUCH ACTION OR CLAIM) OR (II) WOULD RESULT IN THE IMPOSITION OF A
CONSENT ORDER, INJUNCTION OR DECREE WHICH WOULD MATERIALLY AND ADVERSELY
RESTRICT THE FUTURE ACTIVITY OR CONDUCT OF THE BREITBURN INDEMNIFIED PARTY,
OTHER THAN CONDUCT WHICH VIOLATES A LAW.
74
Section 9.3
Indemnification by BreitBurn.
(A)
GENERAL INDEMNITY FROM BREITBURN; ASSUMED
LIABILITIES. UPON, FROM AND AFTER CLOSING, BREITBURN SHALL DEFEND, INDEMNIFY AND
HOLD HARMLESS QUICKSILVER, ITS RESPECTIVE SUCCESSORS AND PERMITTED ASSIGNS AND
THEIR RESPECTIVE SHAREHOLDERS, MEMBERS, PARTNERS (GENERAL AND LIMITED),
OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AGENTS AND REPRESENTATIVES AND EACH OF
THEIR HEIRS,