Common use of Third Party Proceeding Clause in Contracts

Third Party Proceeding. Indemnitor shall have twenty (20) days from receipt of a Claims Notice for a Third Party Proceeding to provide the Indemnitee with notice that it wishes to assume the defense in the Third Party Proceeding, in which event the Indemnitee shall have the right to participate in the defense at its own expense; provided, however, that the Indemnitee is hereby authorized prior to and during such time to file any motion, answer or other pleading that it shall deem necessary or appropriate to protect its interests and that is not prejudicial to Indemnitor. If Indemnitor fails to give the Indemnitee timely notice as provided herein, the Indemnitee shall have the right to defend against such Third Party Proceeding. If Indemnitor assumes the defense in a Third Party Proceeding, the Indemnitor shall not agree to any settlement, compromise or discharge of a Third-Party Claim without the Indemnitee’s prior written consent, which shall not be unreasonably withheld. If the Indemnitor does not assume the defense of a Third-Party Claim, the Indemnitee shall be entitled to undertake any settlement, compromise or discharge of such Third-Party Claim without the Indemnitor’s prior consent. Notwithstanding anything herein to the contrary, an Indemnitor shall not be entitled to assume control of the defense in a Third Party Proceeding, and shall pay the reasonably documented fees and expenses of legal counsel retained by the Indemnitee if: (i) Indemnitee reasonably believes that an adverse determination of such claim could be detrimental to its interests; (ii) Indemnitee reasonably believes that the Indemnitor lacks the financial capability to pay any adverse monetary judgment being sought in the Third Party proceeding; (iii) Indemnitee reasonably believes that a conflict of interest exists or could reasonably arise which, under applicable principles of legal ethics, could prohibit a single legal counsel from representing both the parties in such proceeding, other than a conflict which may exist due to the underlying nature of the duty to indemnify; (iv) a court of competent jurisdiction rules that Indemnitor has failed or is failing to prosecute or defend such claim; or (v) such claim seeks damages other than monetary damages.

Third Party Proceeding. Indemnitor The Sellers agree to defend, contest or otherwise protect the Buyer Indemnitee against any Third Party Proceeding at their sole cost and expense. The Buyer Indemnitee shall have twenty (20) the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of the Buyer Indemnitee's choice and shall in any event cooperate with and assist the Sellers to the extent reasonably possible. If, within 20 days from of Sellers' receipt of a Buyer's Claims Notice for a Third Party Proceeding Notice, the Sellers shall not have provided the written notice electing to provide the Indemnitee with notice that it wishes to assume the defense in defend the Third Party Proceeding, in which event the Buyer Indemnitee shall have the right to participate in the defense at its own expense; provideddo so, howeverincluding, that the Indemnitee is hereby authorized prior to and during such time to file any motionwithout limitation, answer or other pleading that it shall deem necessary or appropriate to protect its interests and that is not prejudicial to Indemnitor. If Indemnitor fails to give the Indemnitee timely notice as provided herein, the Indemnitee shall have the right to defend against such Third Party Proceeding. If Indemnitor assumes the defense in a Third Party Proceeding, the Indemnitor shall not agree to make any settlement, compromise or discharge of a Third-Party Claim without settlement thereof, and the Indemnitee’s prior written consent, which shall not be unreasonably withheld. If the Indemnitor does not assume the defense of a Third-Party Claim, the Buyer Indemnitee shall be entitled to undertake any settlementrecover the entire cost thereof from the Sellers, compromise or discharge including, without limitation, reasonable attorneys' fees, disbursements and amounts paid as the result of such Third-Party Claim without the Indemnitor’s prior consent. Notwithstanding anything herein to the contrary, an Indemnitor shall not be entitled to assume control of the defense in a Third Party Proceeding, and the Sellers shall pay the reasonably documented fees and expenses of legal counsel retained be bound by any determination made in such Third Party Proceeding or any compromise or settlement effected by the Indemnitee if: Buyer. If the Sellers assume the defense of any Third Party Proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made in that Third Party Proceeding are within the scope of and subject to indemnification, (b) no compromise or settlement of such claims may be effected by the Sellers without the Buyer Indemnitee's consent (which consent shall not be unreasonably withheld in a case where such compromise or settlement will have no effect on the ongoing operation of the Business) unless (i) there is no finding or admission of any violation of federal, state, local, municipal, foreign, international, multinational or other administrative order, law, ordinance, principal of common law, regulation, statute or treaty or any violation of the rights of any Person and no effect on any other claims that may be made against the Buyer Indemnitee reasonably believes that an adverse determination of such claim could be detrimental to its interests; and (ii) the sole relief provided is monetary damages that are paid in full by the Sellers; and (c) the Buyer Indemnitee reasonably believes that will have no liability with respect to any compromise or settlement of such claims effected without its consent. The party assuming the Indemnitor lacks the financial capability to pay defense of any adverse monetary judgment being sought in the Third Party proceeding; Proceeding shall keep the other party reasonably informed at all times of the progress and development of its or their defense of and compromise efforts with respect to such Third Party Proceeding and shall furnish the other party with copies of all relevant pleadings, correspondence and other papers. In addition, the parties to this Agreement shall cooperate with each other and make available to each other and their representatives all available relevant records or other materials required by them for their use in defending, compromising or contesting any Third Party Proceeding. In the event both a Seller and a Buyer Indemnitee are named as defendants in an action or proceeding initiated by a third party, they shall both be represented by the same counsel (iii) on whom they shall agree), unless such counsel, a Seller, or such Buyer Indemnitee reasonably believes shall determine that such counsel has a conflict of interest exists or could reasonably arise which, under applicable principles of legal ethics, could prohibit a single legal counsel from in representing both parties same action or proceeding and the parties in Buyer Indemnitee and Seller do not waive such proceeding, other than a conflict which may exist due to the underlying nature satisfaction of the duty to indemnify; (iv) a court of competent jurisdiction rules that Indemnitor has failed or is failing to prosecute or defend such claim; or (v) such claim seeks damages other than monetary damagescounsel.