Common use of Third Party Action Clause in Contracts

Third Party Action. When a Claim involves a Third Party Action, the Recipient of Claim shall have the option to prosecute or defend, at its expense, the Third Party Action, unless the potential liability of the Claimant in the Third Party Action exceeds the maximum liability of the Recipient of Claim established under Section 6.03 or Section 6.04. If the Recipient of Claim does not or cannot elect this option, the Claimant shall diligently prosecute or defend such claim as if it were paying any Losses arising from the Claim, but the Claimant shall not settle such Claim without the consent of the Recipient of Claim, which shall not be unreasonably withheld or delayed. If the Recipient of Claim has undertaken to prosecute or defend the Third Party Action, as permitted herein, then (1) the Claimant may participate, at its own expense, in any and all proceedings related to the Third Party Action and shall be entitled to receive copies of all notices and pleadings or other submissions in any judicial or regulatory proceeding, (2) there shall be no settlement of the Third Party Action without the consent of the Claimant (which shall not be unreasonably withheld or delayed), and (3) if the Claim is fully satisfied, the Recipient of Claim shall be subrogated to all rights and remedies of the Claimant. If the Recipient of Claim submits to the Claimant a bona fide settlement offer from the Third Party Claimant (which settlement offer shall include as an unconditional term of it the release by such Third Party of the Claimant from all liability in respect of such Claim) and the Claimant refuses to consent to such settlement, then thereafter the Recipient of Claim's liability to the Claimant under this Article VI with respect to such Third Party Action shall not exceed the settlement amount included in said bona fide settlement offer, and the Claimant shall either assume the defense of such Third Party Action or pay the Recipient of Claim's attorney's fees and other out-of-pocket costs incurred thereafter in continuing the defense of such Third Party Action. All parties to this Agreement shall cooperate in the defense and prosecution of Third Party Actions and shall furnish such records, information and testimony, and shall attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith.

Third Party Action. When Subject to Section 8.3(c), all claims for indemnification made under this Article VIII based upon, resulting from, related to, or arising out of a Third-Party Action against an Indemnified Party shall be made in accordance with the following procedures: An Indemnified Party shall deliver a Third-Party Claim involves Notice reasonably promptly, but in any event within 30 days, after receipt by the Indemnified Party of written notice of any Third-Party Action against such Indemnified Party, or, if earlier, after becoming aware of any Third-Party Action, which Third-Party Claim Notice shall describe in reasonable detail (to the extent then known by the Indemnified Party) the facts constituting the basis for such Third-Party Action and the claim for indemnification hereunder and shall include a Third good faith estimate (if reasonably practicable) of the amount of the claimed Damages actually suffered or incurred or that could reasonably be expected to be incurred; provided, however, that the failure to provide such Third-Party Claim Notice shall not relieve the Indemnifying Party from any of its obligations under this Article VIII except and only to the extent the Indemnifying Party is adversely prejudiced by such failure. The Parties acknowledge and agree that a Third-Party Claim Notice must be delivered (whether or not formal legal action shall have been commenced based upon such Third-Party Action) before the expiration of any applicable survival period set forth in Section 8.4. At any time prior to the 30th day after delivery of such Third-Party Claim Notice, the Indemnifying Party may (but shall not be obligated to), upon written notice thereof to the Indemnified Party, assume control of the defense of such Third-Party Action with counsel reasonably satisfactory to the Indemnified Party; provided, however, that (i) the Indemnifying Party may not assume control of the defense of a Third-Party Action if the Indemnified Party in good faith determines that the conduct of the defense or any proposed settlement of such Third-Party Action would reasonably be expected to involve the imposition of criminal liability against the Indemnified Party or would reasonably be expected to materially and adversely affect the Indemnified Party’s ability to conduct its business, and (ii) prior to the time the Indemnified Party is notified by the Indemnifying Party as to whether the Indemnifying Party will assume control of the defense of such Third-Party Action, the Recipient Indemnified Party shall take all actions reasonably necessary to timely preserve the collective rights of Claim shall have the option Parties with respect to prosecute or defend, at its expense, the Third such Third-Party Action, unless the potential liability of the Claimant in the Third Party Action exceeds the maximum liability of the Recipient of Claim established under Section 6.03 or Section 6.04including responding timely to legal process. If the Recipient of Claim Indemnifying Party elects not to assume, may not assume, or does not or cannot elect this optiontimely assume, control of such defense, the Claimant Indemnified Party shall diligently prosecute control the defense against, or defend such claim as if it were paying any Losses arising from the Claim, but the Claimant shall not may otherwise seek to negotiate or settle such Claim without Third-Party Action; provided that, the consent Indemnifying Party shall reimburse the Indemnified Party for its costs and expenses in defending such Third-Party Action upon submission of the Recipient of Claim, which shall not be unreasonably withheld or delayedperiodic bills therefor. If the Recipient Indemnifying Party assumes control of Claim has undertaken to prosecute or defend such defense, the Third Indemnified Party Action, as permitted herein, then (1) the Claimant may participateparticipate therein with counsel of its choice, at its own expense, in any and all proceedings related to the Third Party Action and shall be entitled to receive copies of all notices and pleadings or other submissions in any judicial or regulatory proceeding, (2) there shall be no settlement of the Third Party Action without the consent of the Claimant (which shall not be unreasonably withheld or delayed), and (3) ; provided that if the Claim is fully satisfiedIndemnified Party reasonably concludes, based on advice from counsel, that (A) the Recipient of Claim shall be subrogated to all rights and remedies of the Claimant. If the Recipient of Claim submits to the Claimant a bona fide settlement offer from the Third Indemnifying Party Claimant (which settlement offer shall include as an unconditional term of it the release by such Third Party of the Claimant from all liability in respect of such Claim) and the Claimant refuses to consent to such settlement, then thereafter the Recipient Indemnified Party have an actual or potential conflict of Claim's liability to the Claimant under this Article VI interest with respect to such Third Party Action shall not exceed the settlement amount included in said bona fide settlement offer, and the Claimant shall either assume the defense of such Third Third-Party Action or pay (B) there are legal defenses available to the Recipient Indemnified Party that are different from or additional to those available to the Indemnifying Party, the reasonable fees, costs and expenses of Claim's attorney's counsel to the Indemnified Party in connection therewith shall be considered “Damages” for purposes of this Agreement for which the Indemnifying Party shall be liable; provided, however, that in no event shall the Indemnifying Party be responsible for the fees and other outexpenses of more than one counsel for all Indemnified Parties in each jurisdiction for which the Indemnified Parties determine counsel is required with respect to any Third-of-pocket costs incurred thereafter in continuing the defense of such Third Party Action. All The party controlling such defense shall keep the other party and its counsel advised of the status of such Third-Party Action and the defense thereof and shall consider in good faith recommendations made by the other party or its counsel with respect thereto. The respective parties to this Agreement and their counsel shall reasonably cooperate with the other parties in the defense and or prosecution of Third any Third-Party Actions and shall furnish such Action, including providing copies of or reasonable access to all relevant correspondence, records, documents, testimony and information in connection with the defense, negotiation or settlement thereof and testimony, and shall attend attending such conferences, discovery proceedings, hearings, trials and appeals, appeals as may be reasonably requested in connection therewith. The Indemnified Party shall not agree to any settlement or compromise of, or permit a default or consent to entry of any judgment in, such Third-Party Action without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party shall not agree to any settlement or compromise of, or permit a default or consent to entry of any judgment in, such Third-Party Action that does not include a complete and unqualified release of the Indemnified Party from all Liability with respect thereto or that imposes any Liability on the Indemnified Party without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed). Upon making any indemnification payment, the Indemnifying Party shall, to the extent of such payment, be subrogated to all rights of the Indemnified Party against any third party in respect of the Damages to which the payment relates, including all rights and remedies to any insurance benefits or other claims.

Third Party Action. When (a) Any party (the “Indemnifying Party”) will indemnify, defend and hold harmless the other party and its officers, directors, employees, agents, shareholders and Affiliates (collectively, the “Indemnified Parties”) against any Loss arising from, relating to or constituting any Litigation instituted by any third party arising out of the actions or inactions of the other party (or allegations thereof) whether occurring prior to, on or after the Closing Date that are or may be Losses, other than those relating solely to a Claim involves breach by the Buyer or the Company, as applicable, of this Agreement (any such third party action or proceeding being referred to as a Third “Third-Party Action”). An Indemnified Party will give the Indemnifying Party prompt written notice of the commencement of a Third-Party Action. The complaint or other papers pursuant to which the third party commenced such Third-Party Action will be attached to such written notice. The failure to give prompt written notice will not affect any Indemnified Party’s right to indemnification unless such failure has materially and adversely affected the Indemnifying Party’s ability to defend successfully such Third-Party Action. (b) The Indemnifying Party will contest and defend such Third-Party Action on behalf of any Indemnified Party that requests that they do so. Notice of the intention to so contest and defend will be given by the Indemnifying Party to the requesting Indemnified Party within 20 business days after the Indemnified Party’s notice of such Third-Party Action (but, the Recipient in 48 Table of Claim shall have the option to prosecute or defendContents all events, at its expense, least five business days prior to the Third Party Action, unless the potential liability of the Claimant in the Third date that a response to such Third-Party Action exceeds is due to be filed). Such contest and defense will be conducted by reputable attorneys retained by the maximum liability of the Recipient of Claim established under Section 6.03 or Section 6.04Indemnifying Party. If the Recipient of Claim does not or cannot elect this option, the Claimant shall diligently prosecute or defend such claim as if it were paying An Indemnified Party will be entitled at any Losses arising from the Claim, but the Claimant shall not settle such Claim without the consent of the Recipient of Claim, which shall not be unreasonably withheld or delayed. If the Recipient of Claim has undertaken to prosecute or defend the Third Party Action, as permitted herein, then (1) the Claimant may participatetime, at its own cost and expense, to participate in any such contest and all proceedings related defense and to be represented by attorneys of its own choosing. If the Indemnified Party elects to participate in such defense, the Indemnified Party will cooperate with the Indemnifying Party in the conduct of such defense. An Indemnified Party will cooperate with the Indemnifying Party to the Third extent reasonably requested by the Indemnifying Party in the contest and defense of such Third-Party Action, including providing reasonable access (upon reasonable notice) to the books, records and employees of the Indemnified Party if relevant to the defense of such Third-Party Action and shall (c) If an Indemnified Party reasonably determines that the Indemnifying Party is not adequately representing or, because of a conflict of interest, may not adequately represent any interests of the Indemnified Party at any time after requesting the Indemnifying Party to do so, such Indemnified Party will be entitled to receive copies conduct its own defense and to be represented by attorneys of its own choosing all notices at the Indemnifying Party’s cost and pleadings expense. (d) Neither an Indemnified Party nor the Indemnifying Party may concede, settle or other submissions in compromise any judicial or regulatory proceeding, (2) there shall be no settlement of the Third Third-Party Action without the consent of the Claimant (other party, which shall consent will not be unreasonably withheld or delayed), and (3) if the Claim is fully satisfied, the Recipient of Claim shall be subrogated to all rights and remedies of the Claimantwithheld. If the Recipient of Claim submits to the Claimant a bona fide settlement offer from the Third Party Claimant (which settlement offer shall include as an unconditional term of it the release by such Third Party of the Claimant from all liability in respect of such Claim) and the Claimant refuses to consent to such settlement, then thereafter the Recipient of Claim's liability to the Claimant under this Article VI with respect to such Third Party Action shall not exceed the settlement amount included in said bona fide settlement offer, and the Claimant shall either assume the defense of such Third Party Action or pay the Recipient of Claim's attorney's fees and other out-of-pocket costs incurred thereafter in continuing the defense of such Third Party Action. All parties to this Agreement shall cooperate in the defense and prosecution of Third Party Actions and shall furnish such records, information and testimony, and shall attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith.9.4