Respective Rights on Indemnifying Party’s Assumption of Control. If the Indemnifying Party elects to assume control as contemplated in Section 6.12(1), the Indemnifying Party shall reimburse the Indemnified Party for all of the Indemnified Party’s out-of-pocket expenses incurred as a result of such assumption. The Indemnified Party shall continue to have the right to participate in the negotiation, settlement or defence of such Third Party Claim and to retain counsel to act on its behalf, provided that the fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel at its expense or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party and a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences), in which case the fees and disbursements of such counsel shall be paid by the Indemnifying Party. The Indemnified Party shall co-operate with the Indemnifying Party so as to permit the Indemnifying Party to conduct such negotiation, settlement and defence and for this purpose shall preserve all relevant documents in relation to the Third Party Claim, allow the Indemnifying Party access on reasonable notice to inspect and take copies of all such documents and require its personnel to provide such statements as the Indemnifying Party may reasonably require and to attend and give evidence at any trial or hearing in respect of the Third Party Claim.
Respective Rights on Indemnifying Party’s Assumption of Control. If the Indemnifying Party elects to assume control of any such Third Party Claim as contemplated by Section 6.13(1), the Indemnified Party shall reasonably cooperate with the Indemnifying Party and its counsel in the defence of such Third Party Claim. Such reasonable cooperation shall include (a) allowing the Indemnifying Party and its Representatives to investigate the fact, matter, event or circumstance alleged to give rise to the Third Party Claim and using commercially reasonable efforts to make available to the Indemnifying Party, its then current officers, directors and employees to act as witnesses (including interviews, the preparation and submission of witness statements and the giving of evidence at any related hearing); (b) promptly furnishing all material and information relating to the Third Party Claim; (c) preserving all material evidence relating to the Third Party Claim; and (d) providing reasonable access to any Representatives of the Parties as reasonably needed; provided that, in each case, such reasonable cooperation shall not unduly interfere with the operation of the Indemnified Party’s business. The Indemnifying Party shall not consent to the settlement or discharge of such Third Party Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed), unless (i) the relief consists solely of money Damages to be paid by the Indemnifying Party and does not include an injunction or other equitable relief against the Indemnified Party, (ii) the settlement or discharge does not involve any finding or admission of any violation of Applicable Law or admission of any wrongdoing of the Indemnified Party, (iii) such Third Party Claim was not initiated by a Governmental Authority (other than a Third Party Claim for Taxes) and does not involve any criminal or quasi-criminal Proceeding, and (iv) the settlement and discharge would not reasonably be expected to materially and negatively impact or affect the reputation of any Indemnified Party. Notwithstanding the Indemnifying Party’s election to assume the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to monitor the defence of such Third Party Claim, and the Indemnified Party shall bear the fees, costs and expenses of such separate counsel.
