Common use of Actions against Parties Clause in Contracts

Actions against Parties. Notification. Each indemnified party shall give written notice ("Notice of Indemnification") as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with the other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party; provided, however, that if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be one or more legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, the indemnifying party shall not have the right to direct the defense of such action on behalf of such indemnified party or parties. After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by such indemnified party of counsel appointed to defend such action, the indemnifying party will not be liable to such indemnified party under this Section 6 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such indemnified party in connection with the defense thereof, unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the next preceding sentence (it being understood, however, that in connection with such action the indemnifying party shall not be liable for the expenses of more than one separate counsel (in addition to local counsel) in any one action or separate but substantially similar actions in the same jurisdiction arising out of the same general allegations or circumstances, designated by the Underwriters in this Section 6, representing the indemnified parties who are parties to such action or actions) or (ii) the indemnifying party does not promptly retain counsel reasonably satisfactory to the indemnified party or (iii) the indemnifying party has authorized in writing the employment of counsel for the indemnified party at the expense of the indemnifying party. After such notice from the indemnifying party to such indemnified party, the indemnifying party will not be liable for the costs and expenses of any settlement of such action

Actions against Parties. Notification. Each indemnified party shall give written notice ("Notice of Indemnification") as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. In the case of parties indemnified pursuant to Section 6(a) above, counsel to the indemnified parties shall be selected by , and, in the case of parties indemnified pursuant to Section 6(b) above, counsel to the indemnified parties shall be selected by the Company. An indemnifying party may participate at its own expense in the defense of any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with the other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified partyaction; provided, however, that if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be one or more legal defenses available counsel to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, the indemnifying party shall not have (except with the right consent of the indemnified party) also be counsel to direct the defense of such action on behalf of such indemnified party or partiesparty. After notice from In no event shall the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by such indemnified party of counsel appointed to defend such action, the indemnifying party will not be liable to such indemnified party under this Section 6 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such indemnified party in connection with the defense thereof, unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the next preceding sentence (it being understood, however, that in connection with such action the indemnifying party shall not parties be liable for the fees and expenses of more than one separate counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, designated without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by the Underwriters any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 6, representing 6 or Section 7 hereof (whether or not the indemnified parties who are actual or potential parties to thereto), unless such action settlement, compromise or actionsconsent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) the indemnifying party does not promptly retain counsel reasonably satisfactory include a statement as to the indemnified party or (iii) the indemnifying party has authorized in writing the employment an admission of counsel for the indemnified party at the expense fault, culpability or a failure to act by or on behalf of the indemnifying party. After such notice from the indemnifying party to such any indemnified party, the indemnifying party will not be liable for the costs and expenses of any settlement of such action.

Actions against Parties. Notification. Each indemnified party ------------------------------------- shall give written notice ("Notice of Indemnification") as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. In the case of parties indemnified pursuant to Section 6(a) above, counsel to the indemnified parties shall be selected by Xxxxxxx Xxxxx, and, in the case of parties indemnified pursuant to Section 6(b) above, counsel to the indemnified parties shall be selected by the Company. An indemnifying party may participate at its own expense in the defense of any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with the other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified partyaction; provided, however, that if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be one or more legal defenses available counsel to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, the indemnifying party shall not have -------- ------- (except with the right consent of the indemnified party) also be counsel to direct the defense of such action on behalf of such indemnified party or partiesparty. After notice from In no event shall the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by such indemnified party of counsel appointed to defend such action, the indemnifying party will not be liable to such indemnified party under this Section 6 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such indemnified party in connection with the defense thereof, unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the next preceding sentence (it being understood, however, that in connection with such action the indemnifying party shall not parties be liable for the fees and expenses of more than one separate counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, designated without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by the Underwriters any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 6, representing 6 or Section 7 hereof (whether or not the indemnified parties who are actual or potential parties to thereto), unless such action settlement, compromise or actionsconsent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) the indemnifying party does not promptly retain counsel reasonably satisfactory include a statement as to the indemnified party or (iii) the indemnifying party has authorized in writing the employment an admission of counsel for the indemnified party at the expense fault, culpability or a failure to act by or on behalf of the indemnifying party. After such notice from the indemnifying party to such any indemnified party, the indemnifying party will not be liable for the costs and expenses of any settlement of such action.

Actions against Parties. Notification. Each indemnified party If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall give written notice ("Notice of Indemnification") as promptly as reasonably practicable to each indemnifying party of be brought or asserted against any action commenced against it person in respect of which indemnity may be sought hereunder(the "Indemnified Person") pursuant to either of subsections (a) or (b) above, such Indemnified Person shall promptly notify the person against whom such indemnity may be sought (the "Indemnifying Person") in writing (in such detail as may be available to such Indemnified Person). In no case shall an Indemnifying Person be liable under this Section 6 with respect to any claim made against an Indemnified Person unless such Indemnifying Person shall be notified in writing of the nature of the claim within a reasonable time after the Indemnified Person is aware of such claim thereof, but failure so to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event Indemnifying Person shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreementSection 6. In case any Upon such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereofnotice, the indemnifying party will Indemnifying Person shall be entitled to participate therein in, and, to the extent that it may shall wish, jointly with the any other indemnifying party Indemnifying Person similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party; providedIndemnified Person, however, that if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be one or more legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, the indemnifying party shall not have the right to direct the defense of such action on behalf of such indemnified party or parties. After after notice from the indemnifying party Indemnifying Person to such indemnified party Indemnified Person of its election so to assume the defense thereof and approval by such indemnified party of counsel appointed to defend such actionthereof, the indemnifying party will Indemnifying Person shall not be liable to such indemnified party under this Section 6 Indemnified Person for any legal or other expenses, expenses subsequently incurred by such Indemnified Person in connection with the defense thereof other than reasonable costs of investigationinvestigation or as provided in the next succeeding paragraph. Each Indemnified Person shall assist the Indemnifying Person in any defense undertaken pursuant to this Section 6 by providing such assistance and cooperation (including, subsequently incurred without limitation, witness and documentary or other information) as may be reasonably requested by such indemnified party the Indemnifying Person in connection with such defense, provided that all reasonable costs and expenses of such assistance and cooperation shall be borne by the defense thereofIndemnifying Person. Notwithstanding anything to the contrary herein contained, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the indemnified party Indemnifying Person and the Indemnified Person shall have employed separate counsel in accordance with the proviso mutually agreed to the next preceding sentence contrary, (it being understoodii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person or (iii) the named parties in the applicable suit, howeveraction, proceeding, claim or demand (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or defenses available to them. It is understood that the Indemnifying Person shall not, in connection with such action any proceeding or related proceedings in the indemnifying party shall not same jurisdiction, be liable for the fees and expenses of more than one separate counsel firm (in addition to any local counsel) retained by the Indemnified Persons in any one action or separate but substantially similar actions in accordance with the same jurisdiction arising out preceding sentence, and that all such fees and expenses, to the extent they are reasonable, shall be reimbursed as they are incurred, subject to the provisions of the same general allegations or circumstances, designated by the Underwriters in this Section 6, representing the indemnified parties who are parties to such action or actions) or (ii) the indemnifying party does not promptly retain counsel reasonably satisfactory to the indemnified party or (iii) the indemnifying party has authorized in writing the employment of counsel for the indemnified party at the expense of the indemnifying partysucceeding paragraph. After such notice from the indemnifying party to such indemnified party, the indemnifying party will not be liable for the costs and expenses of any settlement of such actionAny such

Actions against Parties. Notification. Each indemnified party shall give written notice ("Notice of Indemnification") as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder except to the extent it is not materially prejudiced as a result thereof of actual damages suffered by such delay and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. In the case of parties indemnified pursuant to Section 7(a) above, counsel to the indemnified parties shall be selected by the Holders of a majority of the Shares constituting Registrable Securities, and, in the case of parties indemnified pursuant to Section 7(b) above, counsel to the indemnified parties shall be selected by the Company. An indemnifying party may participate at its own expense in the defense of any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with the other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified partyaction; provided, however, that if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be one or more legal defenses available counsel to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, the indemnifying party shall not have (except with the right consent of the indemnified party) also be counsel to direct the defense of such action on behalf of such indemnified party or partiesparty. After notice from In no event shall the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by such indemnified party of counsel appointed to defend such action, the indemnifying party will not be liable to such indemnified party under this Section 6 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such indemnified party in connection with the defense thereof, unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the next preceding sentence (it being understood, however, that in connection with such action the indemnifying party shall not parties be liable for the fees and expenses of more than one separate counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, designated without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by the Underwriters any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 6, representing 7 or Section 8 hereof (whether or not the indemnified parties who are actual or potential parties to thereto), unless such action settlement, compromise or actionsconsent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) the indemnifying party does not promptly retain counsel reasonably satisfactory include a statement as to the indemnified party or (iii) the indemnifying party has authorized in writing the employment an admission of counsel for the indemnified party at the expense fault, culpability or a failure to act by or on behalf of the indemnifying party. After such notice from the indemnifying party to such any indemnified party, the indemnifying party will not be liable for the costs and expenses of any settlement of such action.

Actions against Parties. Notification. Each indemnified party shall give written notice ("Notice of Indemnification") as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. In case Counsel to the indemnified parties shall be selected as follows: counsel to the Underwriters and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall be selected by Wachovia; counsel to the Fund, its directors, trustees, members, each of its officers who signed the Registration Statement and each person, if any, who controls the Fund within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall be selected by the Fund; and counsel to the Adviser and each person, if any, who controls such Adviser within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall be selected by such Adviser. An indemnifying party may participate at its own expense in the defense of any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with the other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified partyaction; provided, however, that if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be one or more legal defenses available counsel to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, the indemnifying party shall not have (except with the right consent of the indemnified party) also be counsel to direct the defense of such action on behalf of such indemnified party or partiesparty. After notice from In no event shall the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by such indemnified party of counsel appointed to defend such action, the indemnifying party will not be liable to such indemnified party under this Section 6 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such indemnified party in connection with the defense thereof, unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the next preceding sentence (it being understood, however, that in connection with such action the indemnifying party shall not parties be liable for the fees and expenses of more than one separate counsel (in addition to any local counsel) separate from their own counsel for the Underwriters and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, the fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for the Fund, each of their directors, trustees, members, each of its officers who signed the Registration Statement and each person, if any, who controls the Fund within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, the fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for the Adviser, and the fees and expenses of more than one counsel, in each case in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, designated without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by the Underwriters any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 6, representing 6 or Section 7 hereof (whether or not the indemnified parties who are actual or potential parties to thereto), unless such action settlement, compromise or actionsconsent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) the indemnifying party does not promptly retain counsel reasonably satisfactory include a statement as to the indemnified party or (iii) the indemnifying party has authorized in writing the employment an admission of counsel for the indemnified party at the expense fault, culpability or a failure to act by or on behalf of the indemnifying party. After such notice from the indemnifying party to such any indemnified party, the indemnifying party will not be liable for the costs and expenses of any settlement of such action.

Actions against Parties. NotificationNOTIFICATION. Each indemnified party shall give written notice ("Notice of Indemnification") as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. In the case of parties indemnified pursuant to Section 7(a) above, counsel to the indemnified parties shall be selected by Xxxxxxx Xxxxx, and, in the case of parties indemnified pursuant to Section 7(b) above, counsel to the indemnified parties shall be selected by the Issuers and IWL. An indemnifying party may participate at its own expense in the defense of any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with the other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified partyaction; provided, however, that if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be one or more legal defenses available counsel to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, the indemnifying party shall not have (except with the right consent of the indemnified party) also be counsel to direct the defense of such action on behalf of such indemnified party or partiesparty. After notice from In no event shall the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by such indemnified party of counsel appointed to defend such action, the indemnifying party will not be liable to such indemnified party under this Section 6 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such indemnified party in connection with the defense thereof, unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the next preceding sentence (it being understood, however, that in connection with such action the indemnifying party shall not parties be liable for the fees and expenses of more than one separate counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same same, general allegations or circumstances. No indemnifying party shall, designated without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by the Underwriters any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 6, representing 7 or Section 8 hereof (whether or not the indemnified parties who are actual or potential parties to thereto), unless such action settlement, compromise or actionsconsent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) the indemnifying party does not promptly retain counsel reasonably satisfactory include a statement as to the indemnified party or (iii) the indemnifying party has authorized in writing the employment an admission of counsel for the indemnified party at the expense fault, culpability or a failure to act by or on behalf of the indemnifying party. After such notice from the indemnifying party to such any indemnified party, the indemnifying party will not be liable for the costs and expenses of any settlement of such action.

Actions against Parties. Notification. Each indemnified party shall give written notice ("Notice of Indemnification") as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. In the case any such action is brought against any of parties indemnified partypursuant to Section 8(a) above, and it notifies counsel for the indemnifying party of indemnified parties shall be selected by the commencement thereofJoint Book-Runners, the indemnifying party will be entitled to participate therein and, in the case of parties indemnified pursuant to Section 8(b) above, counsel for the extent that it may wish, jointly with indemnified parties shall be selected by the other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified partyCompany; provided, however, that if the defendants in any each such action include both the indemnified party and the indemnifying party and the indemnified party case, such counsel shall have be reasonably concluded that there may be one or more legal defenses available to it and/or other indemnified parties which are different from or additional to those available satisfactory to the indemnifying party. An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel for the indemnifying party shall not have (except with the right to direct consent of the defense of such action on behalf of such indemnified party or partiesparty) also be counsel for the indemnified party. After notice from In no event shall the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by such indemnified party of counsel appointed to defend such action, the indemnifying party will not be liable to such indemnified party under this Section 6 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such indemnified party in connection with the defense thereof, unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the next preceding sentence (it being understood, however, that in connection with such action the indemnifying party shall not parties be liable for the fees and expenses of more than one separate counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, designated without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by the Underwriters any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 6, representing 8 or Section 9 hereof (whether or not the indemnified parties who are actual or potential parties to thereto), unless such action settlement, compromise or actionsconsent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) the indemnifying party does not promptly retain counsel reasonably satisfactory include a statement as to the indemnified party or (iii) the indemnifying party has authorized in writing the employment an admission of counsel for the indemnified party at the expense fault, culpability or a failure to act by or on behalf of the indemnifying party. After such notice from the indemnifying party to such any indemnified party, the indemnifying party will not be liable for the costs and expenses of any settlement of such action.