Common use of Third Party Action Clause in Contracts

Third Party Action. (a) Parent agrees to indemnify, defend and hold harmless Buyer against any Loss arising from, relating to or constituting any Litigation instituted by any third party arising out of the actions or inactions of Parent or the Seller (or allegations thereof) with respect to the period up to and including the Closing (any such third party action or proceeding being referred to as a “Third Party Action”). Buyer will give Parent 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 Buyer’s right to indemnification unless such failure has materially and adversely affected Parent’s ability to defend successfully such Third Party Action. (b) Parent will contest and defend such Third Party Action on behalf of Buyer if requested. Notice of the intention to so contest and defend will be given by Parent to Buyer within 20 business days after Buyer’s notice of such Third Party Action (but, in all events, at least five business days prior to the date that a response to such Third Party Action is due to be filed). Such contest and defense will be conducted by reputable attorneys retained by Parent. Buyer will be entitled at any time, at its own cost and expense, to participate in such contest and defense and to be represented by attorneys of its own choosing. If Buyer elects to participate in such defense, Buyer will cooperate with Parent in the conduct of such defense. Buyer will cooperate with Parent to the extent reasonably requested by Parent in the contest and defense of such Third Party Action, including providing reasonable access (upon reasonable notice) to the books, records and employees of Buyer if relevant to the defense of such Third Party Action; provided, that such cooperation will not unduly disrupt the operations of the business of the Buyer or cause the Buyer to waive any statutory or common law privileges, breach any confidentiality obligations owed to third parties or otherwise cause any Confidential Information of Buyer to become public. (c) If Buyer does not request that Parent contest and defend a Third Party Action or if Buyer reasonably determines that Parent is not adequately representing or, because of a conflict of interest, may not adequately represent any interests of Buyer at any time after requesting Parent to do so, Buyer will be entitled to conduct its own defense and to be represented by attorneys of its own choosing all at Parent’s cost and expense. Parent will pay as incurred (no later than 25 days after presentation) the fees and expenses of the counsel retained by Buyer. (d) Neither Buyer nor Parent may concede, settle or compromise any Third Party Action without the consent of the other party, which consents will not be unreasonably withheld. Notwithstanding the foregoing, (i) if a Third Party Action seeks the issuance of an injunction, the specific election of an obligation or similar remedy or (ii) if the subject matter of a Third Party Action relates to the ongoing business of Buyer, which Third Party Action, if decided against Buyer, would materially adversely affect the ongoing business or reputation of Buyer, Buyer alone will be entitled to settle such Third Party Action in the first instance and, if Buyer does not settle such Third Party Action, Parent will then have the right to contest and defend (but not settle) such Third Party Action.

Third Party Action. (a) Parent agrees to indemnify, defend and hold harmless Buyer against any Loss arising from, relating to or constituting will give Seller prompt written notice (a “Third Party Claim Notice”) of the commencement of any Litigation instituted by any third party arising out of the actions or inactions of Parent or the Seller (or allegations thereof) with respect for which any Buyer Indemnified Party reasonably believes that it is entitled to the period up indemnification pursuant to and including the Closing Section 8.1 (any such third party action or proceeding being referred to as a “Third Party Action”). Buyer will give Parent 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 noticeThird Party Claim Notice. The failure to give prompt written notice promptly deliver a Third Party Claim Notice will not affect Buyerany Buyer Indemnified Party’s right to indemnification unless except to the extent such failure has materially and adversely affected Parent’s the applicable Seller Indemnifying Parties’ ability to defend successfully such Third Party Action. (b) Parent will Subject to Section 8.3(c), Seller shall have the right and the obligation to contest and defend any such Third Party Action on behalf of the applicable Buyer if requested. Notice of the intention to so contest and defend will be given by Parent to Buyer within 20 business days after Buyer’s notice of such Third Party Action (but, in all events, at least five business days prior to the date that a response to such Third Party Action is due to be filed)Indemnified Party. Such contest and defense will be conducted by reputable attorneys retained and paid by ParentSeller and reasonably satisfactory to Buyer. Any Buyer Indemnified Party will be entitled at any time, at its own cost and expense, to participate in such requested contest and defense and to be represented by attorneys of its own choosing. If a Buyer Indemnified Party elects to participate in such defense, such Buyer Indemnified Party will cooperate with Parent Seller in the conduct of such defense. If Seller has been requested to contest and defend such Third Party Action, the applicable Buyer Indemnified Parties will cooperate with Parent Seller to the extent reasonably requested by Parent Seller in the contest and defense of such Third Party Action, including providing reasonable access (upon reasonable notice) to the books, records and employees of such Buyer Indemnified Party if relevant to the defense of such Third Party Action; provided, however, that such cooperation will not unduly disrupt the operations of the business of the such Buyer Indemnified Party or cause the such Buyer Indemnified Party to waive any statutory or common law privileges, breach any confidentiality obligations owed to third parties or otherwise cause any Confidential Information confidential information of such Buyer Indemnified Party to become public. (c) If a Buyer does not request Indemnified Party requests that Parent Seller contest and defend a Third Party Action or if Buyer reasonably but later determines that Parent Seller is not adequately representing or, because of a conflict of interest, may not adequately represent any interests of the Buyer Indemnified Party at any time after requesting Parent Seller to do so, a Buyer Indemnified Party will be entitled to conduct its own defense and to be represented by attorneys of its own choosing choosing, all at ParentSeller’s cost and expense. Parent will pay as incurred (no later than 25 days after presentation) the fees and expenses of the counsel retained by Buyer. (d) Neither a Buyer Indemnified Party, on the one hand, nor Parent Seller, on the other hand, may concede, settle or compromise any Third Party Action without the consent of the other partyother, which consents consent will not be unreasonably withheld. Notwithstanding the foregoing, (i) if a Third Party Action seeks the issuance of an injunction, the specific election of an obligation or similar remedy remedy, (ii) if a Third Party Action seeks damages in excess of the amount by which a Buyer Indemnified Party is entitled to indemnification pursuant to this Article VIII, or (iiiii) if the subject matter of a Third Party Action relates to the ongoing business of Buyerany Buyer Indemnified Party, which Third Party Action, if decided against Buyerany Buyer Indemnified Party, would materially adversely affect the ongoing business or reputation of Buyerany Buyer Indemnified Party, such Buyer Indemnified Party alone will be entitled to settle such Third Party Action in the first instance and, if Buyer does not settle such Third Party Action, Parent will then have the right to contest and defend (but not settle) such Third Party Action.

Third Party Action. (a) Parent agrees If Purchaser is entitled to indemnify, defend and hold harmless Buyer against any Loss indemnification under Section 9.1(a) for Purchasing Company Losses arising from, relating to or constituting any Litigation instituted by any third party arising out of the actions or inactions of Parent or the Seller (or allegations thereof) with respect to the period up to and including the Closing (any such third party action or proceeding being referred to as a “Third Third-Party Action”). Buyer will , Purchaser shall give Parent Seller prompt written notice of the commencement of a Third such Third-Party Action. The complaint or other papers pursuant to which the third party commenced such Third Third-Party Action will shall be attached to such written notice. The failure to give prompt written notice will shall not affect BuyerPurchaser’s right to indemnification unless such failure has materially and adversely affected ParentSeller’s ability to defend successfully such Third Third-Party Action. (b) Parent will contest and defend Seller may participate in, and, to the extent Seller desires, at any time assume the defense of, such Third Third-Party Action on behalf of Buyer if requested. Notice of the intention to so contest and defend will be given by Parent to Buyer within 20 business days after Buyer’s notice of such Third Party Action (but, in all events, at least five business days prior to the date that a response to such Third Party Action is due to be filed). Such contest and defense will be conducted by with reputable attorneys retained by ParentSeller and at Seller’s expense. Buyer will Upon and after notice from Seller to Purchaser of its election to assume the defense of such Third-Party Action, Seller shall not be liable to Purchaser under this Article IX for any legal or other expenses subsequently incurred by Purchaser in connection with the defense thereof; provided, however, that Purchaser shall be entitled at any time, at its own cost and expense, to participate in Seller’s conduct of such contest and defense and to be represented by attorneys of its own choosing. If Buyer elects to participate in such defense, Buyer will Purchaser shall cooperate with Parent Seller in the Seller’s conduct of such defense. Buyer will cooperate with Parent defense to the extent reasonably requested by Parent Seller in the contest and defense of such Third Third-Party Action, including but not limited to providing reasonable access (upon reasonable notice) to the books, records and employees of Buyer Purchaser if relevant to the defense of such Third Third-Party Action; provided, that such cooperation will shall not unduly disrupt the operations of the business of the Buyer Purchaser or cause the Buyer Purchaser to waive any statutory or common law privileges, breach any confidentiality obligations owed to third parties or otherwise cause any Confidential Information confidential information of Buyer Purchaser to become public. (c) If Buyer Seller does not request that Parent contest and defend a Third elect to assume the defense of any Third-Party Action or if Buyer reasonably determines that Parent is not adequately representing orAction, because of a conflict of interest, may not adequately represent any interests of Buyer at any time after requesting Parent to do so, Buyer will Purchaser shall be entitled to conduct its own defense and to be represented by attorneys of its own choosing all at Parent’s cost and expensechoosing. Parent will pay as incurred (no later than 25 days after presentation) For the fees avoidance of doubt, the costs and expenses of such defense shall be included in Purchasing Companies Losses indemnifiable in accordance with and subject to the counsel retained by Buyerprovisions of this Article IX. (d) Neither Buyer Purchaser nor Parent Seller may concede, settle or compromise any Third Third-Party Action without the consent of the other party, which consents will shall not be unreasonably withheld. Notwithstanding the foregoing, (i) if a Third Party Action seeks the issuance of an injunction, the specific election of an obligation withheld or similar remedy or (ii) if the subject matter of a Third Party Action relates to the ongoing business of Buyer, which Third Party Action, if decided against Buyer, would materially adversely affect the ongoing business or reputation of Buyer, Buyer alone will be entitled to settle such Third Party Action in the first instance and, if Buyer does not settle such Third Party Action, Parent will then have the right to contest and defend (but not settle) such Third Party Actiondelayed.

Third Party Action. (a) Parent agrees to indemnify, defend and hold harmless Buyer against any Loss arising from, relating to or constituting will give Seller Representative prompt written notice (a “Third Party Claim Notice”) of the commencement of any Litigation instituted by any third party arising out of the actions or inactions of Parent or the Seller (or allegations thereof) with respect for which any Buyer Indemnified Party reasonably believes that it is entitled to the period up indemnification pursuant to and including the Closing Section 8.1 (any such third party action or proceeding being referred to as a “Third Party Action”). Buyer will give Parent prompt written notice of the commencement of a Third Party Action. The Action”).The complaint or other papers pursuant to which the third party commenced such Third Party Action will be attached to such written noticeThird Party Claim Notice. The failure to give prompt written notice promptly deliver a Third Party Claim Notice will not affect Buyerany Buyer Indemnified Party’s right to indemnification unless except to the extent such failure has materially and adversely affected Parent’s the applicable Seller Indemnifying Parties’ ability to defend successfully such Third Party Action. (b) Parent will Subject to Section 8.3(c), Seller Representative shall have the right and the obligation to contest and defend any such Third Party Action on behalf of the applicable Buyer if requested. Notice of the intention to so contest and defend will be given by Parent to Buyer within 20 business days after Buyer’s notice of such Third Party Action (but, in all events, at least five business days prior to the date that a response to such Third Party Action is due to be filed)Indemnified Party. Such contest and defense will be conducted by reputable attorneys retained and paid by ParentSellers and reasonably satisfactory to Buyer. Any Buyer Indemnified Party will be entitled at any time, at its own cost and expense, to participate in such requested contest and defense and to be represented by attorneys of its own choosing. If a Buyer Indemnified Party elects to participate in such defense, such Buyer Indemnified Party will cooperate with Parent Seller Representative in the conduct of such defense. If Seller Representative has been requested to contest and defend such Third Party Action, the applicable Buyer Indemnified Parties will cooperate with Parent Seller Representative to the extent reasonably requested by Parent Seller Representative in the contest and defense of such Third Party Action, including providing reasonable access (upon reasonable notice) to the books, records and employees of such Buyer Indemnified Party if relevant to the defense of such Third Party Action; provided, however, that such cooperation will not unduly disrupt the operations of the business of the such Buyer Indemnified Party or cause the such Buyer Indemnified Party to waive any statutory or common law privileges, breach any confidentiality obligations owed to third parties or otherwise cause any Confidential Information confidential information of such Buyer Indemnified Party to become public. (c) If a Buyer does not request Indemnified Party requests that Parent Seller Representative contest and defend a Third Party Action or if Buyer reasonably but later determines that Parent Seller Representative is not adequately representing or, because of a conflict of interest, may not adequately represent any interests of the Buyer Indemnified Party at any time after requesting Parent Seller Representative to do so, a Buyer Indemnified Party will be entitled to conduct its own defense and to be represented by attorneys of its own choosing choosing, all at Parent’s Sellers’ cost and expense. Parent will pay as incurred (no later than 25 days after presentation) the fees and expenses of the counsel retained by Buyer. (d) Neither a Buyer Indemnified Party, on the one hand, nor Parent Seller Representative, on the other hand, may concede, settle or compromise any Third Party Action without the consent of the other partyother, which consents consent will not be unreasonably withheld. Notwithstanding the foregoing, (i) if a Third Party Action seeks the issuance of an injunction, the specific election of an obligation or similar remedy remedy, (ii) if a Third Party Action seeks damages in excess of the amount by which a Buyer Indemnified Party is entitled to indemnification pursuant to this Article VIII, or (iiiii) if the subject matter of a Third Party Action relates to the ongoing business of Buyerany Buyer Indemnified Party, which Third Party Action, if decided against Buyerany Buyer Indemnified Party, would materially adversely affect the ongoing business or reputation of Buyerany Buyer Indemnified Party, such Buyer Indemnified Party alone will be entitled to settle such Third Party Action in the first instance and, if Buyer does not settle such Third Party Action, Parent will then have the right to contest and defend (but not settle) such Third Party Action.

Third Party Action. (a) Parent agrees to indemnify, defend and hold harmless Buyer against any Loss arising from, relating to or constituting will give Seller Representative prompt written notice (a “Third Party Claim Notice”) of the commencement of any Litigation instituted by any third party arising out of the actions or inactions of Parent or the Seller (or allegations thereof) with respect for which any Buyer Indemnified Party reasonably believes that it is entitled to the period up indemnification pursuant to and including the Closing Section 8.1 (any such third party action or proceeding being referred to as a “Third Party Action”). Buyer will give Parent 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 noticeThird Party Claim Notice. The failure to give prompt written notice promptly deliver a Third Party Claim Notice will not affect Buyerany Buyer Indemnified Party’s right to indemnification unless except to the extent such failure has materially and adversely affected Parentthe Seller Representative’s ability to defend successfully such Third Party Action. Buyer will deliver to Seller Representative copies of all additional documents reasonably related to or required to defend such Third Party Action promptly after receipt thereof. (b) Parent will Subject to Section 8.3(c), Seller Representative shall have the right and obligation to contest and defend any such Third Party Action on behalf of the applicable Buyer if requested. Notice of the intention to so contest and defend will be given by Parent to Buyer within 20 business days after Buyer’s notice of such Third Party Action (but, in all events, at least five business days prior to the date that a response to such Third Party Action is due to be filed)Indemnified Party. Such contest and defense will be conducted by reputable attorneys retained and paid by ParentSellers and reasonably satisfactory to Buyer. Any Buyer Indemnified Party will be entitled at any time, at its own cost and expense, to participate in such contest and defense and to be represented by attorneys of its own choosing; provided, however, that, subject to this Section 8.3, the Seller Representative shall control the defense of any such contest. If Seller Representative contests and defends such Third Party Action, the applicable Buyer elects to participate in such defense, Buyer Indemnified Parties (i) will cooperate with Parent in the conduct of such defense. Buyer will cooperate with Parent Seller Representative to the extent reasonably requested by Parent Seller Representative in the contest and defense of such Third Party Action, including providing reasonable access (upon reasonable notice) to the books, records and employees of such Buyer Indemnified Party if relevant to the defense of such Third Party ActionAction and the Sellers will not be liable to the Buyer Indemnified Party for any legal expenses incurred by the Buyer Indemnified Party in connection with the defense thereof (subject to this Section 8.3); provided, however, that such cooperation will not unduly disrupt the operations of the business of the such Buyer Indemnified Party or cause the such Buyer Indemnified Party to waive any statutory or common law privileges, breach any confidentiality obligations owed to third parties or otherwise cause any Confidential Information material confidential information of such Buyer Indemnified Party to become public and (ii) will not admit any liability with respect to, or settle, discharge or compromise such Third Party Action without the Seller Representative’s prior written consent which shall not be unreasonably withheld, except as otherwise contemplated by Section 8.3(d). If the Seller Representative assumes the defense of a Third Party Action, the Seller Representative shall not concede, settle or compromise such Third Party Action without Buyer’s prior written consent which shall not be unreasonably withheld; provided, however, that the consent of Buyer shall not be required if (i) Sellers pay the full amount of the liability in connection with such Third Party Action, (ii) such settlement, compromise or discharge includes a full, complete and unconditional release of Buyer, Daseke Holdco, Parent and each of their Affiliates from further liability with respect to become publicsuch Third Party Action, and (iii) such settlement, compromise or discharge does not require any commitment or admission by Buyer, Daseke Holdco, Parent or any of their Affiliates of any wrongdoing or violation of Law or the rights of any Person (other than the making of any payments that are paid in full by the applicable Seller Indemnifying Parties as provided in the foregoing clause (i)) (the conditions set forth in clauses (i), (ii) and (iii), the “Required Conditions”). (c) If Buyer does not request that Parent Seller Representative chooses to contest and defend a Third Party Action or if but (i) the applicable Buyer Indemnified Party reasonably determines in good faith, based upon advice of counsel, that Parent an actual and material conflict of interest exists between the applicable Seller Indemnifying Parties and such Buyer Indemnified Party with respect to an issue that is not adequately representing or, because significant to the defense of a conflict of interest, may Third Party Action such that the applicable Seller Indemnifying Parties (or the Seller Representative on their behalf) could not adequately represent any the applicable interests of the Buyer at any time after requesting Parent Indemnified Party or (ii) upon petition by the Buyer Indemnified Party, the appropriate Governmental Entity issues a final, non-appealable ruling that the applicable Seller Indemnifying Parties (or the Sellers’ Representative on their behalf) have failed or are failing to do soconduct the defense of a Third Party Action in good faith, then, in each case of clauses (i) and (ii), a Buyer Indemnified Party will be entitled to conduct its own defense and to be represented by attorneys of its own choosing that are reasonably satisfactory to Seller Representative, all at Parent’s Sellers’ cost and expense. Parent , but the Sellers will pay as incurred (no later than 25 days after presentation) not be bound by any determination in connection with such Third Party Action for purposes of this Agreement or any concession, settlement or compromise without the fees and expenses consent of the counsel retained by BuyerSeller Representative until Sellers’ liability is otherwise determined in accordance with this Article VIII. (d) Neither A Buyer nor Parent Indemnified Party may not concede, settle or compromise any Third Party Action without the prior written consent of Seller Representative; provided, however, that the other party, which consents will consent of Seller Representative shall not be unreasonably withheld. Notwithstanding the foregoing, required if (i) if a Third Party Action seeks the issuance of an injunction, the specific election of an obligation or similar remedy remedy, (ii) if a Third Party Action seeks damages in excess of the amount by which a Buyer Indemnified Party is entitled to indemnification pursuant to this Article VIII, or (iiiii) if the subject matter of a Third Party Action relates to the ongoing business of Buyerany Buyer Indemnified Party, which Third Party Action, if decided against Buyerany Buyer Indemnified Party, would materially and adversely affect the ongoing business or reputation of Buyerany Buyer Indemnified Party other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, such Buyer Indemnified Party alone will be entitled to settle such Third Party Action, but the Sellers will not be bound by any determination in connection with such Third Party Action for purposes of this Agreement or any concession, settlement or compromise without the consent of Seller Representative until Sellers’ liability is otherwise determined in accordance with this Article VIII. (e) Notwithstanding anything herein to the first instance andcontrary, if the Sellers shall retain the exclusive right to contest, defend, settle, concede, compromise and control the defense of the Outstanding Claim; provided, however, that Sellers may not concede, settle or compromise the Outstanding Claim without Buyer’s prior written consent which shall not be unreasonably withheld. Sellers shall provide written notice to Buyer upon receipt of any definitive offer to settle the Outstanding Claim which Sellers desire to accept, which offer shall meet the Required Conditions (an “Outstanding Claim Proposed Settlement”). If Buyer does not settle consent to an Outstanding Claim Proposed Settlement within 10 Business Days of its receipt of such Third Party Actionnotice, Parent will then have Buyer shall assume the right defense of the Outstanding Claim and the Sellers’ liability for such Outstanding Claim shall be limited to contest amounts incurred prior to Buyer’s assumption of the defense and defend the amounts (but not settlegiven proper credit for applicable insurance coverage) such Third Party Actionunder the Outstanding Claim Proposed Settlement (and, as between Buyer and Sellers, Buyer shall be solely responsible for the amount of any Losses in excess thereof).

Third Party Action. (a) Parent agrees to indemnify, defend and hold harmless Buyer against any Loss arising from, relating to or constituting will give Sellers prompt written notice (a “Third Party Claim Notice”) of the commencement of any Litigation instituted by any third party arising out of the actions or inactions of Parent or the Seller (or allegations thereof) with respect for which any Buyer Indemnified Party reasonably believes that it is entitled to the period up indemnification pursuant to and including the Closing Section 10.1 (any such third party action or proceeding being referred to as a “Third Party Action”). Buyer will give Parent 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 noticeThird Party Claim Notice. The failure to give prompt written notice promptly deliver a Third Party Claim Notice will not affect Buyerany Buyer Indemnified Party’s right to indemnification unless except to the extent such failure has materially and adversely affected Parent’s the applicable Seller Indemnifying Parties’ ability to defend successfully such Third Party Action. (b) Parent will Subject to Section 10.3(c), Sellers shall have the right and the obligation to contest and defend any such Third Party Action on behalf of the applicable Buyer if requested. Notice of the intention to so contest and defend will be given by Parent to Buyer within 20 business days after Buyer’s notice of such Third Party Action (but, in all events, at least five business days prior to the date that a response to such Third Party Action is due to be filed)Indemnified Party. Such contest and defense will be conducted by reputable attorneys retained and paid by ParentSellers and reasonably satisfactory to Buyer. Any Buyer Indemnified Party will be entitled at any time, at its own cost and expense, to participate in such requested contest and defense and to be represented by attorneys of its own choosing. If a Buyer Indemnified Party elects to participate in such defense, such Buyer Indemnified Party will cooperate with Parent Sellers in the conduct of such defense. If Sellers have been requested to contest and defend such Third Party Action, the applicable Buyer Indemnified Parties will cooperate with Parent Sellers to the extent reasonably requested by Parent Sellers in the contest and defense of such Third Party Action, including providing reasonable access (upon reasonable notice) to the books, records and employees of such Buyer Indemnified Party if relevant to the defense of such Third Party Action; provided, however, that such cooperation will not unduly disrupt the operations of the business of the such Buyer Indemnified Party or cause the such Buyer Indemnified Party to waive any statutory or common law privileges, breach any confidentiality obligations owed to third parties or otherwise cause any Confidential Information confidential information of such Buyer Indemnified Party to become public. (c) If a Buyer does not request Indemnified Party requests that Parent Sellers contest and defend a Third Party Action or if Buyer but later reasonably determines that Parent is Sellers are not adequately representing or, because of a conflict of interest, may not adequately represent any interests of the Buyer Indemnified Party at any time after requesting Parent Sellers to do so, a Buyer Indemnified Party will be entitled to conduct its own defense and to be represented by attorneys of its own choosing choosing, all at Parent’s Sellers’ cost and expense. Parent will pay as incurred (no later than 25 days after presentation) the fees and expenses of the counsel retained by Buyer. (d) Neither a Buyer Indemnified Party, on the one hand, nor Parent Sellers on the other hand, may concede, settle or compromise any Third Party Action without the consent of the other partyother, which consents consent will not be unreasonably withheld, delayed or conditioned. Notwithstanding the foregoing, (i) if a Third Party Action seeks the issuance of an injunction, the specific election of an obligation or similar remedy remedy, (ii) if a Third Party Action seeks damages in excess of the amount by which a Buyer Indemnified Party is entitled to indemnification pursuant to this Article X, or (iiiii) if the subject matter of a Third Party Action relates to the ongoing business of Buyerany Buyer Indemnified Party, which Third Party Action, if decided against Buyerany Buyer Indemnified Party, would materially adversely affect the ongoing business or reputation of Buyerany Buyer Indemnified Party, such Buyer Indemnified Party alone will be entitled to settle such Third Party Action in the first instance and, if Buyer does not settle such Third Party Action, Parent will then have the right to contest and defend (but not settle) such Third Party Action.