Common use of Assumption of Defense by Indemnifying Party Clause in Contracts

Assumption of Defense by Indemnifying Party. Any Person entitled to indemnification hereunder will (a) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification and (b) permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party; provided, however, that any Person entitled to indemnification hereunder shall have the right to employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of such Person unless (i) the indemnifying party has agreed to pay such fees or expenses, or (ii) the indemnifying party shall have failed to assume the defense of such claim and employ counsel reasonably satisfactory to such Person or (iii) in the reasonable judgment of any such Person, based upon written advice of its counsel, a conflict of interest may exist between such Person and the indemnifying party with respect to such claims (in which case, if the Person notifies the indemnifying party in writing that such Person elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such claims on behalf of such Person). If such defense is not assumed, the indemnifying party will not be subject to any liability for any settlement made without its consent (but such consent will not be unreasonably withheld). An indemnifying party which is not entitled to, or elects not to, assume the defense of a claim will not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim, in which case the indemnifying party shall pay the reasonable fees and expenses of such additional counsel or counsels. The failure of any indemnified party to provide the notice required by Section 7.3(a) above shall not relieve the indemnifying party under this Section 7, except to the extent that the indemnifying party is actually prejudiced by such failure to give notice.

Assumption of Defense by Indemnifying Party. Any Person entitled Subject to SECTION 16.3(C) hereof, if any indemnification obligation hereunder will (a) give prompt written notice to shall arise from the indemnifying claim of a third party, the indemnified party of any claim with respect to which it seeks indemnification and (b) shall permit such the indemnifying party to assume the defense of any such claim or any litigation resulting from such claim unless such third party is seeking injunctive or equitable remedies in respect of the indemnified party or its business. If the indemnifying party assumes the defense of such claim or litigation, the obligations of the indemnifying party hereunder shall include taking all steps reasonably necessary in the defense or settlement of such claim or litigation and holding the indemnified party harmless from and against any and all Damages caused by or arising out of any settlement approved by the indemnifying party or any judgment in connection with such claim or litigation. The indemnifying party shall not in the defense of such claim or litigation, unless the indemnified party otherwise expressly consents in writing, consent to entry of any judgment or enter into any settlement (i) unless such judgment or settlement provides only for monetary damages to be paid by the indemnifying party and (ii) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the indemnified party of a release from all liability in respect of such claim or litigation. In cases where the indemnifying party has, by written instrument delivered to the indemnified party, assumed the defense or a settlement with respect to a claim for which indemnity is being sought, and is not in default, or otherwise unable to perform its obligations, under this ARTICLE 16, the indemnifying party shall be entitled to assume the defense or settlement thereof with counsel of its own choosing, which counsel shall be reasonably satisfactory to the indemnified party; provided, however, provided that any Person the indemnified party (and its counsel) -------- shall be entitled to indemnification hereunder shall have the right to employ separate counsel and continue to participate at its own cost in the defense of any such claimaction or proceeding or in any negotiations or proceedings to settle or otherwise eliminate any claim for which indemnification is being sought, but the fees and expenses of such counsel shall be at the expense of such Person unless (i) the indemnifying party has agreed to pay such fees or expenses, or (ii) the indemnifying party shall have failed to assume consult in good faith with the defense indemnified party upon the indemnified party's request regarding the conduct of such claim and employ counsel reasonably satisfactory to such Person action, proceeding or (iii) in the reasonable judgment of any such Person, based upon written advice of its counsel, a conflict of interest may exist between such Person and the indemnifying party with respect to such claims (in which case, if the Person notifies the indemnifying party in writing that such Person elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such claims on behalf of such Person). If such defense is not assumed, the indemnifying party will not be subject to any liability for any settlement made without its consent (but such consent will not be unreasonably withheld). An indemnifying party which is not entitled to, or elects not to, assume the defense of a claim will not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim, in which case the indemnifying party shall pay the reasonable fees and expenses of such additional counsel or counsels. The failure of any indemnified party to provide the notice required by Section 7.3(a) above shall not relieve the indemnifying party under this Section 7, except to the extent that the indemnifying party is actually prejudiced by such failure to give notice.

Assumption of Defense by Indemnifying Party. Any Person entitled to indemnification hereunder will (a) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification and (b) permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party; provided, however, that any Person entitled to indemnification hereunder shall have the right to employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of such Person unless (i) the indemnifying party has agreed to pay such fees or expenses, or (ii) the indemnifying party shall have failed to assume the defense of such claim and employ counsel reasonably satisfactory to such Person or (iii) in the reasonable judgment of any such Person, based upon written advice of its counsel, a conflict of interest may exist between such Person and the indemnifying party with respect to such claims (in which case, if the Person notifies the indemnifying party in writing that such Person elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such claims on behalf of such Person). If such defense is not assumed, the indemnifying party will not be subject to any liability for any settlement made without its consent (but such consent will not be unreasonably withheld). An indemnifying party which is not entitled to, or elects not to, assume the defense of a claim will not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim, in which case the indemnifying party shall pay the reasonable fees and expenses of such additional counsel or counsels. The failure of any indemnified party to provide the notice required by Section 7.3(a) above shall not relieve the indemnifying indemnifing party under this Section 7, except to the extent that the indemnifying party is actually prejudiced by such failure to give notice.

Assumption of Defense by Indemnifying Party. Any Person person entitled to indemnification hereunder will (ai) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification and (bii) permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party; provided, however, that any Person person entitled to indemnification hereunder shall have the right to employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of such Person person unless (iA) the indemnifying party has agreed to pay such fees or expenses, or (iiB) the indemnifying party shall have failed to assume the defense of such claim and employ counsel reasonably satisfactory to such Person person, or (iiiC) in the reasonable judgment of any such Personperson, based upon written advice of its counsel, a conflict of interest may exist between such Person person and the indemnifying party with respect to such claims (in which case, if the Person person notifies the indemnifying party in writing that such Person person elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such claims on behalf of such Personperson). If such defense is not assumed, the indemnifying party will not be subject to any liability for any settlement made without its consent (but such consent will not be unreasonably withheld). An indemnifying party which is not entitled to, or elects not to, assume the defense of a claim will not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim, in which case the indemnifying party shall pay the reasonable fees and expenses of such additional counsel or counsels. The failure of any indemnified party to provide the notice required by Section 7.3(a5.4(c)(i) above shall not relieve the indemnifying party under this Section 75, except to the extent that the indemnifying party is actually prejudiced by such failure to give notice.

Assumption of Defense by Indemnifying Party. Any Person entitled to indemnification hereunder The Indemnifying Party will (a) give prompt have the right, but not the obligation, by written notice to the indemnifying party Indemnified Party with a copy to the Company delivered within 30 days after the receipt of any claim with respect to which it seeks indemnification and (b) permit such indemnifying party a notice under Section 4.2(b), to assume the defense entire control of such the defense, compromise and settlement of the claim with or demand that is the subject of the notice, including the use of counsel reasonably satisfactory to chosen by the indemnified party; providedIndemnifying Party, howeverall at the sole cost and expense of the Indemnifying Party. Notwithstanding the foregoing, that any Person entitled to indemnification hereunder shall have the right to employ separate counsel and to Indemnified Party may participate in the defense of such claim, but the fees and expenses of such counsel shall be at the sole cost and expense of such Person unless (i) the indemnifying party has agreed to pay such fees or expenses, or (ii) the indemnifying party shall have failed to assume Indemnified Party. The assumption of the defense of such the claim or demand by the Indemnifying Party will constitute a waiver by the Indemnifying Party of its right to contest or dispute its indemnification obligation for the claim or demand. Any Adverse Consequences to the assets or business of the Indemnified Party or the Company caused by the failure of the Indemnifying Party to defend, compromise or settle a claim or demand in a diligent manner after having given notice that it will assume control of the defense, compromise and employ counsel reasonably satisfactory to such Person or (iii) settlement of the matter will be included in the reasonable judgment Adverse Consequences for which the Indemnifying Party will be obligated to indemnify the Indemnified Parties and the Company. Any settlement or compromise of any such Person, based upon written advice of its counsel, a conflict of interest may exist between such Person and claim or demand by the indemnifying party Indemnifying Party will be made only with respect to such claims (in which case, if the Person notifies the indemnifying party in writing that such Person elects to employ separate counsel at the expense consent of the indemnifying partyIndemnified Party, the indemnifying party shall which may not have the right to assume the defense of such claims on behalf of such Person)be unreasonably withheld or delayed. If such defense is not assumed, the indemnifying party An Indemnified Party will not be subject to any liability for any settlement made without considered unreasonable in withholding its consent (but such consent will not be unreasonably withheld). An indemnifying party which is not entitled tounless the settlement or compromise includes a full release of all claims and liabilities against the Indemnified Parties and the Company arising out of or relating to the claim or demand, or elects not toprovides for the payment of only money damages, assume and the defense Indemnifying Party has provided to the Indemnified Parties assurance acceptable to the Indemnified Parties of a claim will not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other payment of such indemnified parties with respect to such claim, in which case money damages immediately upon the indemnifying party shall pay the reasonable fees and expenses of such additional counsel settlement or counsels. The failure of any indemnified party to provide the notice required by Section 7.3(a) above shall not relieve the indemnifying party under this Section 7, except to the extent that the indemnifying party is actually prejudiced by such failure to give noticecompromise.

Assumption of Defense by Indemnifying Party. Any Person entitled to indemnification hereunder will If within ten (a10) give prompt calendar days after an Indemnitee provides written ------------------------------------------- notice to the indemnifying party Indemnifying Party of any claim with respect to which it seeks indemnification and (b) permit Third Party Claim the Indemnitee received written notice from the Indemnifying Party that such indemnifying party Indemnifying Party has elected to assume the defense of such claim Third Party Claim as provided in the last sentence of Section 6.6, the Indemnifying Party shall not be liable for any legal expenses subsequently incurred by the Indemnitee in connection with counsel reasonably satisfactory to the indemnified partydefense thereof; provided, however, that if the Indemnifying Party fails to take reasonable steps necessary to defend diligently such Third Party Claim, either within the time by which a responsive filing is due or within twenty (20) calendar days after receiving notice from the Indemnitee that the Indemnitee believes the Indemnifying Party has failed to take such steps, whichever period is shorter, the Indemnitee may assume it sown defense, and the Indemnifying Party will be liable for all reasonable attorneys' fees and expenses thereof. Without the prior written consent of the Indemnitee, the Indemnifying Party shall not enter into any Person settlement of any Third Party Claim which would lead to liability or create any financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder. If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party shall have give written notice to the right Indemnitee to employ separate counsel and that effect. If the Indemnitee fails to participate in the defense consent to such firm offer within ten (10) calendar days after its receipt of such claimnotice, but the fees Indemnitee may continue to contest or defend such Third Party Claim and, in such event, the maximum liability of the Indemnifying Party as to such third Party Claim will be the amount of such settlement offer, plus reasonable costs and expenses paid or incurred by the Indemnitee up to the date of such counsel shall be at the expense of such Person unless (i) the indemnifying party has agreed to pay such fees or expenses, or (ii) the indemnifying party shall have failed to assume the defense of such claim and employ counsel reasonably satisfactory to such Person or (iii) in the reasonable judgment of any such Person, based upon written advice of its counsel, a conflict of interest may exist between such Person and the indemnifying party with respect to such claims (in which case, if the Person notifies the indemnifying party in writing that such Person elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such claims on behalf of such Person). If such defense is not assumed, the indemnifying party will not be subject to any liability for any settlement made without its consent (but such consent will not be unreasonably withheld). An indemnifying party which is not entitled to, or elects not to, assume the defense of a claim will not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim, in which case the indemnifying party shall pay the reasonable fees and expenses of such additional counsel or counsels. The failure of any indemnified party to provide the notice required by Section 7.3(a) above shall not relieve the indemnifying party under this Section 7, except to the extent that the indemnifying party is actually prejudiced by such failure to give notice.

Assumption of Defense by Indemnifying Party. Any Person entitled to indemnification hereunder will (a) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification and (b) permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party; provided, however, that any Person entitled to indemnification hereunder shall have the right to employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of such Person unless (i) the indemnifying party has agreed to pay such fees or expenses, or (ii) the indemnifying party shall have failed to assume the defense of such claim and employ counsel reasonably satisfactory to such Person or (iii) in the reasonable judgment of any such Person, based upon written advice of its counsel, a conflict of interest may exist between such Person and the indemnifying party with respect to such claims (in which case, if the Person notifies the indemnifying party in writing that such Person elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such claims on behalf of such Person). If such defense is not assumed, the indemnifying party will not be subject to any liability for any settlement made without its consent (but such consent will not be unreasonably withheld). An indemnifying party which who is not entitled to, or elects not to, assume the defense of a claim will not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim, in which case the indemnifying party shall pay the reasonable fees and expenses of such additional counsel or counsels. The failure of any indemnified party to provide the notice required by Section section 7.3(a) above shall not relieve the indemnifying party under this Section section 7, except to the extent that the indemnifying party is actually prejudiced by such failure to give notice.

Assumption of Defense by Indemnifying Party. Any Person entitled to indemnification hereunder will (a) give prompt The Indemnifying Party shall have the right, but not the obligation, by written notice to the indemnifying party Indemnified Party with a copy to the Company delivered within 30 days after the receipt of any claim with respect to which it seeks indemnification and (b) permit such indemnifying party a notice under Section 4.2(b), to assume the defense entire control of such the defense, compromise and settlement of the claim with or demand that is the subject of the notice, including the use of counsel reasonably satisfactory to chosen by the indemnified party; providedIndemnifying Party, howeverall at the sole cost and expense of the Indemnifying Party. Notwithstanding the foregoing, that any Person entitled to indemnification hereunder shall have the right to employ separate counsel and to Indemnified Party may participate in the defense of such claim, but the fees and expenses of such counsel shall be at the sole cost and expense of such Person unless (i) the indemnifying party has agreed to pay such fees or expenses, or (ii) the indemnifying party shall have failed to assume Indemnified Party. The assumption of the defense of such the claim or demand by the Indemnifying Party shall constitute a waiver by the Indemnifying Party of its right to contest or dispute its indemnification obligation for the claim or demand. Any Adverse Consequences to the assets or business of the Indemnified Party or the Company caused by the failure of the Indemnifying Party to defend, compromise or settle a claim or demand in a diligent manner after having given notice that it will assume control of the defense, compromise and employ counsel reasonably satisfactory to such Person or (iii) settlement of the matter shall be included in the reasonable judgment Adverse Consequences for which the Indemnifying Party shall be obligated to indemnify the Indemnified Parties and the Company. Any settlement or compromise of any such Person, based upon written advice of its counsel, a conflict of interest may exist between such Person and the indemnifying party claim or demand by the Indemnifying Party shall be made only with respect to such claims (in which case, if the Person notifies the indemnifying party in writing that such Person elects to employ separate counsel at the expense consent of the indemnifying partyIndemnified Party, the indemnifying party shall not have the right to assume the defense of such claims on behalf of such Person). If such defense is not assumed, the indemnifying party will not be subject to any liability for any settlement made without its consent (but such consent will which may not be unreasonably withheld)withheld or delayed. An indemnifying party which is not entitled to, or elects not to, assume the defense of a claim will Indemnified Party shall not be obligated considered unreasonable in withholding its consent unless the settlement or compromise includes a full release of all claims and liabilities against the Indemnified Parties and the Company arising out of or relating to pay the fees claim or demand, provides for the payment of only money damages, and expenses the Indemnifying Party has provided to the Indemnified Parties assurance acceptable to the Indemnified Parties of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other payment of such indemnified parties with respect to such claim, in which case money damages immediately upon the indemnifying party shall pay the reasonable fees and expenses of such additional counsel settlement or counsels. The failure of any indemnified party to provide the notice required by Section 7.3(a) above shall not relieve the indemnifying party under this Section 7, except to the extent that the indemnifying party is actually prejudiced by such failure to give noticecompromise.

Assumption of Defense by Indemnifying Party. Any Person entitled ------------------------------------------- to indemnification hereunder will (a) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification and (b) permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party; provided, however, -------- ------- that any Person entitled to indemnification hereunder shall have the right to employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of such Person unless (i) the indemnifying party has agreed to pay such fees or expenses, or (ii) the indemnifying party shall have failed to assume the defense of such claim and employ counsel reasonably satisfactory to such Person or (iii) in the reasonable judgment of any such Person, based upon written advice of its counsel, a conflict of interest may exist between such Person and the indemnifying party with respect to such claims (in which case, if the Person notifies the indemnifying party in writing that such Person elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such claims on behalf of such Person). If such defense is not assumed, the indemnifying party will not be subject to any liability for any settlement made without its consent (but such consent will not be unreasonably withheld). An indemnifying party which is not entitled to, or elects not to, assume the defense of a claim will not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim, in which case the indemnifying party shall pay the reasonable fees and expenses of such additional counsel or counsels. The failure of any indemnified party to provide the notice required by Section 7.3(a) above shall not relieve the indemnifying indemnifing party under this Section 7, except to the extent that the indemnifying party is actually prejudiced by such failure to give notice.

Assumption of Defense by Indemnifying Party. Any Person ------------------------------------------- entitled to indemnification hereunder will (a) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification and (b) permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party; provided, however, -------- ------- that any Person entitled to indemnification hereunder shall have the right to employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of such Person unless (i) the indemnifying party has agreed to pay such fees or expenses, or (ii) the indemnifying party shall have failed to assume the defense of such claim and employ counsel reasonably satisfactory to such Person or (iii) in the reasonable judgment of any such Person, based upon written advice of its counsel, a conflict of interest may exist between such Person and the indemnifying party with respect to such claims (in which case, if the Person notifies the indemnifying party in writing that such Person elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such claims on behalf of such Person). If such defense is not assumed, the indemnifying party will not be subject to any liability for any settlement made without its consent (but such consent will not be unreasonably withheld). An indemnifying party which is not entitled to, or elects not to, assume the defense of a claim will not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim, in which case the indemnifying party shall pay the reasonable fees and expenses of such additional counsel or counsels. The failure of any indemnified party to provide the notice required by Section 7.3(a) above shall not relieve the indemnifying indemnifing party under this Section 7, except to the extent that the indemnifying party is actually prejudiced by such failure to give notice.

Assumption of Defense by Indemnifying Party. Any Person With respect to any third party claim for which any party may be entitled to indemnification hereunder will (a) give prompt written notice pursuant to the indemnifying party of any claim with respect to which it seeks indemnification Sections 9.1 and (b) permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to 9.2, the indemnified party; provided, however, that any Person entitled to indemnification hereunder shall have the right to employ separate counsel and to participate in party may assume primary responsibility for the defense of such claim, but and may select legal counsel reasonably acceptable to the indemnifying party to conduct the defense of such claim. If the indemnified party assumes and undertakes a defense of a third party claim or claims in accordance with the immediately preceding sentence, the indemnifying party shall be liable to the indemnified party for any reasonable attorneys’ fees and expenses incurred by the indemnified party in connection with such matter, after receiving notice from the indemnified party to the effect that it intends to take advantage of the provisions set forth in the immediately preceding sentence. In the event the indemnified party assumes primary responsibility for the defense of any claim, the indemnifying party shall continue to pay the legal fees and expenses of such counsel shall be at for the expense of such Person unless (i) the indemnifying indemnified party has agreed to pay such fees or expenses, or (ii) the indemnifying party shall have failed to assume the defense of such claim and employ counsel reasonably satisfactory to such Person or (iii) in the reasonable judgment of any such Person, based upon written advice of its counsel, a conflict of interest may exist between such Person and the indemnifying party with respect to such claims (in which case, if the Person notifies the indemnifying party in writing that such Person elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume direct the defense of such claims action on behalf of such Person)the indemnified party. If such defense is not assumedThe indemnified party shall have the right, with the consent of the indemnifying party will not be subject to any liability for any settlement made without its (which consent (but such consent will shall not be unreasonably withheld). An indemnifying party which is not entitled to, conditioned or elects not todelayed) to settle or compromise any such action on terms satisfactory to it; provided, assume the defense of a claim will not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claimhowever, unless that in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim, in which case event the indemnifying party shall have failed to pay any of the reasonable fees and expenses payments required pursuant to Section 9.3(c) within sixty (60) days after receipt of an invoice therefor, then, in such additional counsel event, the indemnified party shall be entitled to settle or counselscompromise any such action without the consent of the indemnifying party. The failure of any indemnified party agrees to provide the notice required by Section 7.3(a) above shall not relieve keep the indemnifying party under this Section 7, except to (or its legal representative) fully apprised of any such defense until the extent that disposition of the indemnifying party is actually prejudiced by such failure to give noticeclaim.

Assumption of Defense by Indemnifying Party. Any Person ------------------------------------------- entitled to indemnification hereunder will (a) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification and (b) permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party; provided, however, -------- -------- that any Person entitled to indemnification hereunder shall have the right to employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of such Person unless (i) the indemnifying party has agreed to pay such fees or expenses, or (ii) the indemnifying party shall have failed to assume the defense of such claim and employ counsel reasonably satisfactory to such Person or (iii) in the reasonable judgment of any such Person, based upon written advice of its counsel, a conflict of interest may exist between such Person and the indemnifying party with respect to such claims (in which case, if the Person notifies the indemnifying party in writing that such Person elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such claims on behalf of such Person). If such defense is not assumed, the indemnifying party will not be subject to any liability for any settlement made without its consent (but such consent will not be unreasonably withheld). An indemnifying party which who is not entitled to, or elects not to, assume the defense of a claim will not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim, in which case the indemnifying party shall pay the reasonable fees and expenses of such additional counsel or counsels. The failure of any indemnified party to provide the notice required by Section section 7.3(a) above shall not relieve the indemnifying party under this Section section 7, except to the extent that the indemnifying party is actually prejudiced by such failure to give notice.