Common use of Reservation of Right to Defend Clause in Contracts

Reservation of Right to Defend. If either SunTrust, on the one hand, or FMC or FMER, on the other hand, as an Indemnified Party, reasonably determines that the Indemnifying Party has failed to diligently assume and maintain a prompt and vigorous defense of any claim to which Indemnified Party is entitled to indemnification hereunder and with respect to which the conditions set forth in Section 16.4 have been satisfied, either SunTrust, on the one hand, or FMC or FMER, on the other hand, as an Indemnified Party, may, at its own expense, option and discretion, assume sole control of the defense of any claim and all related settlement negotiations with counsel of its own choosing and without waiving any other rights to indemnification. If SunTrust or FMC and/or FMER, as applicable, provides sufficient evidence to support its right to defend pursuant to this Section, the Indemnifying Party will pay all costs and expenses (including reasonable attorneys’ fees) incurred by such Indemnified Party in such defense. Notwithstanding anything to the contrary in the foregoing, SunTrust or FMC and/or FMER, as applicable, will not accept any settlement on behalf of the Indemnifying Party that results in an admission of liability by the Indemnifying Party without the Indemnifying Party’s express written consent.

Reservation of Right to Defend. If either SunTrust, SunTrust on the one handbehalf of a SunTrust Indemnified Party, or FMC or FMER, on the other hand, as behalf of an FM Indemnified Party, reasonably determines that the applicable Indemnifying Party has failed to diligently assume and maintain a prompt and vigorous defense of any claim to which the applicable Indemnified Party is entitled to indemnification hereunder and with respect to which the conditions set forth in Section 16.4 have been satisfied, either SunTrust, on the one hand, or FMC or FMER, on the other hand, as an Indemnified Party, may, at its own expense, option and discretion, assume sole control of the defense of any claim and all related settlement negotiations with counsel of its own choosing and without waiving any other rights to indemnification. If SunTrust on behalf of a SunTrust Indemnified Party or FMC and/or FMERFMER on behalf of an FM Indemnified Party, as applicable, provides sufficient evidence to support its right to defend pursuant to this SectionSection 16.5, the Indemnifying Party will pay all costs and expenses (including reasonable attorneys’ fees) incurred by such Indemnified Party in such defense. Notwithstanding anything to the contrary in the foregoing, SunTrust or FMC and/or FMER, as applicable, no Indemnified Party will not accept any settlement on behalf of the Indemnifying Party that results in an admission of liability by the Indemnifying Party without the Indemnifying Party’s express written consent.”