Common use of Participating in or Assuming the Defense Clause in Contracts

Participating in or Assuming the Defense. The indemnifying party may participate in the defense at any time or it may assume the defense by obtaining consent of the indemnified party, which shall not be unreasonably withheld, delayed or conditioned, and the parties shall reasonably cooperate with each other. After assuming the defense, the indemnifying party: (1) must select an attorney that is satisfactory to the other party; (2) shall permit the indemnified party to participate in settlement or defense through separate counsel chosen by the indemnified party (subject to the consent of the indemnifying party, which consent shall not be unreasonably withheld), provided that the fees and expenses of such counsel shall not be borne by the indemnifying party unless one of the following conditions shall exist: (x) the indemnifying party shall have failed to assume the defense of such claim or employ counsel reasonably satisfactory to the indemnified party, or (y) the defendants in any such action include both the indemnifying party and the indemnified party and the indemnified party has reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party, or (z) there exists or will exist a conflict of interest between the indemnified party and the indemnifying party for the same counsel to represent both the indemnifying party and the indemnified party and; (3) must not compromise or settle the action (unless such compromise or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to the indemnified party of a release from all liability in respect to such action) without the other party's consent (but the other party must not unreasonably withhold its consent); and (4) is not liable for any compromise or settlement made without its consent, so long as indemnifying party is contesting the indemnifiable claim in good faith.

Participating in or Assuming the Defense. The indemnifying party may participate in the defense at any time or it may assume the defense by obtaining consent of the indemnified party, which shall not be unreasonably withheld, delayed or conditioned, and the parties shall reasonably cooperate with each other. After assuming the defense, the indemnifying party: (1) must select an attorney that is satisfactory to the other party; (2) shall permit the indemnified party to participate in settlement or defense through separate counsel chosen by the indemnified party (subject to the consent of the indemnifying party, which consent shall not be unreasonably withheld), provided that the fees and expenses of such counsel shall not be borne by the indemnifying party unless one of the following conditions shall exist: (x) the indemnifying party shall have failed to assume the defense of such claim or employ counsel reasonably satisfactory to the indemnified party, or (y) the defendants in any such action include both the indemnifying party and the indemnified party and the indemnified party has reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party, or (z) there exists or will exist a conflict of interest between the indemnified party and the indemnifying party for the same counsel to represent both the indemnifying party and the indemnified party and; (3) must not compromise or settle the action (unless such compromise or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to the indemnified party of a release from all liability in respect to such action) without the other party's ’s consent (but the other party must not unreasonably withhold its consent); and (4) is not liable for any compromise or settlement made without its consent, so long as indemnifying party is contesting the indemnifiable claim in good faith.