Common use of Right of Parties to Settle or Defend Clause in Contracts

Right of Parties to Settle or Defend. In the event of any claim by a third party against an Indemnitee for which indemnification is available hereunder, the Indemnitor has the right, exercisable by written notice to the Indemnitee, within thirty (30) days of receipt of a Notice from the Indemnitor to assume and conduct the defense of such claim (at its sole expense) with counsel selected by the Indemnitor and reasonably acceptable to the Indemnitee so long as Indemnitor acknowledges in a writing delivered to the Indemnitee that the Indemnitor is obligated to indemnify, defend and hold harmless the Indemnitee under the terms of its indemnification obligations hereunder in connection with such third party claim; provided that if the named parties to such third party claim include both the Indemnitor and the Indemnitee and the Indemnitee has been advised in writing by counsel that there could be a material conflict of interest in the case of joint representation or that there may be a legal defense available to such Indemnitee that is different (in a non de minimis way) from those available to the Indemnitor, the Indemnitee shall be entitled to separate counsel of its own choosing at the Indemnitor’s reasonable expense; and provided further that the Indemnitor shall not be permitted to assume defense of any claim by a third party against an Indemnitee for which indemnification is available hereunder (without the written consent of the Indemnitee) if the third party claimant is seeking injunctive or similar relief that, if obtained, could be materially adverse to the Indemnitee. If the Indemnitor has assumed such defense as provided in this Section 10.4(b), the Indemnitor will not be liable for any legal expenses subsequently incurred by any Indemnitee in connection with the defense of such claim so long as the Indemnitor actively, diligently and in good faith defends such claim. If the Indemnitor does not assume the defense of any third party claim in accordance with this Section 10.4(b), the Indemnitee may continue to defend such claim at the sole cost of the Indemnitor (subject to the limitations set forth in this Article X) and the Indemnitor may still participate in, but not control, the defense of such third party claim at the Indemnitor’s sole cost and expense. The Indemnitee will not consent to a settlement of, or the entry of any judgment arising from, any such claim, without the prior written consent of the Indemnitor (such consent not to be unreasonably withheld, conditioned or delayed). Except with the prior written consent of the Indemnitee (such consent not to be unreasonably withheld, conditioned or delayed), no Indemnitor, in the defense of any such claim, will consent to the entry of any judgment or enter into any settlement thereof. Indemnitee shall not be obligated to consent to any settlement or judgment (i) if it provides for injunctive or other nonmonetary relief affecting the Indemnitee or (ii) unless it includes as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnitee and its Affiliates of a release from all Liability with respect to such claim or litigation. In any such third party claim, the party responsible for the defense of such claim (the “Responsible Party”) shall, to the extent reasonably requested by the other party, keep such other party informed as to the status of such claim, including all settlement negotiations and offers. Each Indemnitee shall use all reasonable efforts to make available to the Indemnitor and its representatives, all books, records and personnel of the Indemnitee relating to such third party claim and shall reasonably cooperate with the Indemnitor in the defense of the third party claim.

Right of Parties to Settle or Defend. In the event of any claim by a third party against an Indemnitee for which indemnification is available hereunder, the Indemnitor has the right, exercisable by written notice to the Indemnitee, within thirty (30) days of receipt of a Notice from the Indemnitor to assume and conduct the defense of such claim (at its sole expense) with counsel selected by the Indemnitor and reasonably acceptable to the Indemnitee so long as Indemnitor acknowledges in a writing delivered to the Indemnitee that the Indemnitor is obligated to indemnify, defend and hold harmless the Indemnitee under the terms of its indemnification obligations hereunder in connection with such third party claim; provided that if the named parties to such third party claim include both the Indemnitor and the Indemnitee and the Indemnitee has been advised in writing by counsel that there could be a material conflict of interest in the case of joint representation or that there may be a legal defense available to such Indemnitee that is different (in a non de minimis way) from those available to the Indemnitor, the Indemnitee shall be entitled to separate counsel of its own choosing at the Indemnitor’s reasonable expense; and provided further that the Indemnitor shall not be permitted to assume defense of any claim by a third party against an Indemnitee for which indemnification is available hereunder (without the written consent of the Indemnitee) if the third party claimant is seeking injunctive or similar relief that, if obtained, could be materially adverse to the Indemnitee. If the Indemnitor has assumed such defense as provided in this Section 10.4(b), the Indemnitor will not be liable for any legal expenses subsequently incurred by any Indemnitee in connection with the defense of such claim so long as the Indemnitor actively, diligently and in good faith defends such claim. If the Indemnitor does not assume the defense of any third party claim in accordance with this Section 10.4(b), the Indemnitee may continue to defend such claim at the sole cost of the Indemnitor (subject to the limitations set forth in this Article XX ) and the Indemnitor may still participate in, but not control, the defense of such third party claim at the Indemnitor’s sole cost and expense. The Indemnitee will not consent to a settlement of, or the entry of any judgment arising from, any such claim, without the prior written consent of the Indemnitor (such consent not to be unreasonably withheld, conditioned or delayed). Except with the prior written consent of the Indemnitee (such consent not to be unreasonably withheld, conditioned or delayed), no Indemnitor, in the defense of any such claim, will consent to the entry of any judgment or enter into any settlement thereof. Indemnitee shall not be obligated to consent to any settlement or judgment (i) if it provides for injunctive or other nonmonetary relief affecting the Indemnitee or (ii) unless it includes as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnitee and its Affiliates of a release from all Liability with respect to such claim or litigation. In any such third party claim, the party responsible for the defense of such claim (the “Responsible Party”) shall, to the extent reasonably requested by the other party, keep such other party informed as to the status of such claim, including all settlement negotiations and offers. Each Indemnitee shall use all reasonable efforts to make available to the Indemnitor and its representatives, all books, records and personnel of the Indemnitee relating to such third party claim and shall reasonably cooperate with the Indemnitor in the defense of the third party claim.

Right of Parties to Settle or Defend. In the event of any claim by a third party against an Indemnitee for which indemnification is available hereunder, If the Indemnitor has the right, exercisable by written notice determines to the Indemnitee, within thirty (30) days of receipt of a Notice from the Indemnitor to assume and conduct accept the defense of such claim, the Indemnitee shall provide all requested waivers and authorities for the Indemnitor to act on behalf of the Indemnitee. The Indemnitor shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period after receipt of notice of such Claim by the Indemnitee during which the Indemnitor has failed to assume the defense thereof. If the Indemnitor does not expressly assume the defense of such Claim, the Indemnitee shall have the sole right to assume the defense of and to settle such Claim; provided, however, that in no event shall the Indemnitee settle such claim (without the prior consent of the Indemnitor as provided in Section 9.06 below. If the Indemnitor assumes the defense of any Claim, the Indemnitee may participate, at its sole own expense) with counsel selected by the Indemnitor and reasonably acceptable to the Indemnitee so long as Indemnitor acknowledges in a writing delivered to the Indemnitee that the Indemnitor is obligated to indemnify, defend and hold harmless the Indemnitee under the terms of its indemnification obligations hereunder in connection with such third party claim; provided that if the named parties to such third party claim include both the Indemnitor and the Indemnitee and the Indemnitee has been advised in writing by counsel that there could be a material conflict of interest in the case defense of joint representation or such Claim; provided, however, that there may be a legal defense available to such Indemnitee that is different (in a non de minimis way) from those available to the Indemnitor, the Indemnitee shall be entitled to participate in any such defense with separate counsel of its own choosing at the Indemnitor’s expense of the Indemnitor if (i) so requested by the Indemnitor to participate, or (ii) in the reasonable expenseopinion of counsel to the Indemnitee, a conflict or potential conflict exists between the Indemnitee and the Indemnitor that would make such separate representation advisable and; and provided further provided, further, that the Indemnitor shall not be permitted required to assume defense of any claim by a third party against an Indemnitee pay for which indemnification is available hereunder (without the written consent of the Indemnitee) if the third party claimant is seeking injunctive or similar relief that, if obtained, could be materially adverse to the Indemnitee. If the Indemnitor has assumed more than one such defense as provided in this Section 10.4(b), the Indemnitor will not be liable counsel for any legal expenses subsequently incurred by any Indemnitee all Indemnitees in connection with the defense of such claim so long as the Indemnitor actively, diligently and in good faith defends such claim. If the Indemnitor does not assume the defense of any third party claim in accordance with this Section 10.4(b), the Indemnitee may continue to defend such claim at the sole cost of the Indemnitor (subject to the limitations set forth in this Article X) and the Indemnitor may still participate in, but not control, the defense of such third party claim at the Indemnitor’s sole cost and expense. The Indemnitee will not consent to a settlement of, or the entry of any judgment arising from, any such claim, without the prior written consent of the Indemnitor (such consent not to be unreasonably withheld, conditioned or delayed). Except with the prior written consent of the Indemnitee (such consent not to be unreasonably withheld, conditioned or delayed), no Indemnitor, in the defense of any such claim, will consent to the entry of any judgment or enter into any settlement thereof. Indemnitee shall not be obligated to consent to any settlement or judgment (i) if it provides for injunctive or other nonmonetary relief affecting the Indemnitee or (ii) unless it includes as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnitee and its Affiliates of a release from all Liability with respect to such claim or litigation. In any such third party claim, the party responsible for the defense of such claim (the “Responsible Party”) shall, to the extent reasonably requested by the other party, keep such other party informed as to the status of such claim, including all settlement negotiations and offers. Each Indemnitee shall use all reasonable efforts to make available to the Indemnitor and its representatives, all books, records and personnel of the Indemnitee relating to such third party claim and shall reasonably cooperate with the Indemnitor in the defense of the third party claimClaim.