Common use of Control of Defense; Exceptions, etc Clause in Contracts

Control of Defense; Exceptions, etc. Subject to Section ------------------------------------- 11.3(e), notwithstanding the provisions of paragraph 11.4: (i) the Indemnified Party will be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose at its own expense (provided that the -------- Indemnifying Party will bear the reasonable fees and expenses of such separate counsel incurred prior to the date upon which the Indemnifying Party effectively assumes control of such defense), (ii) the Indemnifying Party will not be entitled to assume control of the defense of such claim, and will pay the reasonable fees and expenses of legal counsel retained by the Indemnified Party, if: (a) the Indemnified Party reasonably believes that an adverse determination of such proceeding could be detrimental to or injure the Indemnified Party's reputation or future business prospects, (b) the Indemnified Party reasonably believes upon advice of legal counsel that there exists or could arise a conflict of interest which, under applicable principles of legal ethics, could prohibit a single legal counsel from representing both the Indemnified Party and the Indemnifying Party in such proceeding, or (c) a court of competent jurisdiction rules that the Indemnifying Party has failed or is failing to prosecute or defend vigorously such claim; and (d) the Indemnifying Party must obtain the prior written consent of the Indemnified Party (which the Indemnified Party will not unreasonably withhold or delay) prior to entering into any settlement of such claim or proceeding or ceasing to defend such claim or proceeding.

Control of Defense; Exceptions, etc. Subject to Section ------------------------------------- 11.3(e), notwithstanding Notwithstanding the ------------------------------------ provisions of paragraph 11.4: Section 11.3(b): (i) the Indemnified Party will be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose at its own expense (provided that the -------- Indemnifying Party -------- will bear the reasonable fees and expenses of such separate counsel incurred prior to the date upon which the Indemnifying Party effectively assumes control of such defense), (ii) the Indemnifying Party will not be entitled to assume control of the defense of such claim, and will pay the reasonable fees and expenses of legal counsel retained by the Indemnified Party, if: (ai) the Indemnified Party reasonably believes that an adverse determination of such proceeding Proceeding could be detrimental to or injure the Indemnified Party's reputation or future business prospects, (bii) the Indemnified Party reasonably believes upon advice of legal counsel that there exists or could arise a conflict of interest which, under applicable principles of legal ethics, could prohibit a single legal counsel from representing both the Indemnified Indemnifying Party and the Indemnifying Party in such proceedingProceeding, or (ciii) a court of competent jurisdiction rules that the Indemnifying Party has failed or is failing to prosecute or defend vigorously such claim; and (div) the Indemnifying Party must obtain the prior written consent of the Indemnified Party (which the Indemnified Party will not unreasonably withhold or delaywithhold) prior to entering into any settlement of such claim or proceeding Proceeding or ceasing to defend such claim or proceedingProceeding.

Control of Defense; Exceptions, etc. Subject to Section ------------------------------------- 11.3(e), notwithstanding the provisions of paragraph 11.4: (i) the The Indemnified Party will be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose at its own expense (provided that the -------- Indemnifying Party will bear the reasonable fees and expenses of such separate counsel incurred prior to the date upon which the Indemnifying Party effectively assumes control of such defense), (ii) the . The Indemnifying Party will not be entitled to assume control of the defense of such claim, and will pay the reasonable fees and expenses of legal counsel retained by the Indemnified Party, if: (ai) the Indemnified Party reasonably believes that an adverse determination of such proceeding Proceeding could be detrimental to or injure the Indemnified Party's reputation or future business prospects, (bii) the Indemnified Party reasonably believes upon advice of legal counsel that there exists or could arise a conflict of interest which, under applicable principles of legal ethics, could prohibit a single legal counsel from representing both the Indemnified Indemnifying Party and the Indemnifying Party in such proceedingProceeding, or (ciii) a court of competent jurisdiction rules that the Indemnifying Party has failed or is failing to prosecute or defend vigorously such claim; and (div) the Indemnifying Party must obtain the prior written consent of the Indemnified Party (which the Indemnified Party will not unreasonably withhold or delaywithhold) prior to entering into any settlement of such claim or proceeding Proceeding or ceasing to defend such claim or proceedingProceeding.

Control of Defense; Exceptions, etc. Subject to Section ------------------------------------- 11.3(e), notwithstanding the provisions of paragraph 11.4: (i) the The Indemnified Party Person will be entitled to participate in the defense of such any indemnification claim or Action pursuant to this Section 9.4 and to employ separate counsel of its choice for such purpose at its own expense expense. If (provided A) the Indemnifying Person fails to timely notify the Indemnified Person that the -------- Indemnifying Party will bear Person elects to defend the reasonable fees and expenses of such separate counsel incurred prior Indemnified Person pursuant to the date upon which the Indemnifying Party effectively assumes control of such defenseSection 9.4(b), (iiB) the Indemnifying Party will Person elects to defend the indemnified party but fails to diligently defend the claim as herein provided by reasonably appropriate Proceedings, (C) the Indemnifying Person does not have the financial wherewithal to pay for such defense, (D) the potential Damages involved could reasonably be entitled expected to assume control exceed the Cap, (E) such claim or Action involves a regulatory matter, (F) such Action involves a Governmental Agency, or (G) such Action involves a claim for specific performance or injunctive or other equitable relief or involves criminal or quasi-criminal allegations, then the Indemnified Person shall have the right to defend, at the cost of the defense of such claimIndemnifying Person, the Action by all appropriate proceedings, which Proceedings shall be promptly and will pay the reasonable fees and expenses of legal counsel retained reasonably prosecuted by the Indemnified PartyPerson to a final conclusion, if: (a) the Indemnified Party reasonably believes that an adverse determination of such proceeding could be detrimental to or injure the Indemnified Party's reputation or future business prospects, (b) the Indemnified Party reasonably believes upon advice of legal counsel that there exists or could arise a conflict of interest which, under applicable principles of legal ethics, could prohibit a single legal counsel from representing both the Indemnified Party and the Indemnifying Party in such proceeding, or (c) a court of competent jurisdiction rules that the Indemnifying Party has failed or is failing to prosecute or defend vigorously such claim; and (d) the Indemnifying Party must obtain settled with the prior written consent of the Indemnified Party (which Indemnifying Party. If the Indemnifying Person assumes control of the defense of any such claim, then the Indemnified Party will not unreasonably withhold or delay) prior to entering into any settlement Person shall reasonably cooperate in the defense of such claim or proceeding or ceasing to defend such claim or proceedingclaim.

Control of Defense; Exceptions, etc. Subject to Section ------------------------------------- 11.3(e), notwithstanding the provisions of paragraph 11.4: (i) the The Indemnified Party will be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose at its own expense (provided that the -------- Indemnifying Party will bear the reasonable fees and expenses of such separate counsel incurred prior to the date upon which the Indemnifying Party effectively assumes control of such defense), (ii) the . The Indemnifying Party will not be entitled to assume control of the defense of such claim, and will pay the reasonable fees and expenses of legal counsel retained by the Indemnified Party, if: (ai) the Indemnified Party reasonably believes that an adverse determination of such proceeding Proceeding could be detrimental to or injure the Indemnified Party's reputation or future business prospects, (bii) the Indemnified Party reasonably believes upon advice of legal counsel that there exists or could arise a conflict of interest which, under applicable principles of legal ethics, could prohibit a single legal counsel from representing both the Indemnified Party and the Indemnifying Party in such proceedingProceeding, orand/or (ciii) a court of competent jurisdiction rules that the Indemnifying Party has failed or is failing to prosecute or defend vigorously such claim; and (d) the . The Indemnifying Party must obtain the prior written consent of the Indemnified Party (which the Indemnified Party will not unreasonably withhold or delaywithhold) prior to entering into any settlement of such claim or proceeding Proceeding or ceasing to defend such claim or proceedingProceeding.