Common use of Duty to Defend; Attorneys’ Fees and Other Fees and Expenses Clause in Contracts

Duty to Defend; Attorneys’ Fees and Other Fees and Expenses. Upon written request by any Indemnified Party, Mortgagor shall defend such Indemnified Party (if requested by any Indemnified Party, in the name of the Indemnified Party) by attorneys and other professionals selected by Mortgagor and approved by the Indemnified Parties, which approval shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, if the defendants in any such claim or proceeding include both Mortgagor and any Indemnified Party and Mortgagor and such Indemnified Party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Parties that are different from or additional to those available to Mortgagor, such Indemnified Party shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Party, provided that no compromise or settlement shall be entered without Mortgagor’s consent, which consent shall not be unreasonably withheld, conditioned or delayed. Within ten (10) Business Days of demand, Mortgagor shall pay or, in the sole and absolute discretion of the Indemnified Parties, reimburse, the Indemnified Parties for the payment of reasonable out-of-pocket fees and disbursements of attorneys, engineers, environmental consultants, laboratories and other professionals in connection therewith.

Duty to Defend; Attorneys’ Fees and Other Fees and Expenses. Upon written request by any Indemnified Party, Mortgagor shall defend such Indemnified Party (if requested by any Indemnified Party, in the name of the Indemnified Party) by attorneys and other professionals selected by Mortgagor and reasonably approved by the Indemnified PartiesParties (any attorney selected by an insurer or paid by an insurer being deemed approved) and Mortgagor shall have the right to negotiate and enter into and/or consent to any settlement, subject to the prior approval of the Indemnified Party (which approval shall not be unreasonably withheld, conditioned or delayed), provided that (a) such approval shall not be required in connection with any settlement which includes any unconditional release of the Indemnified Party and all related actions for all liability for which the Indemnified Party is seeking indemnification and (b) there is no admission of wrongdoing on the part of the Indemnified Party. Notwithstanding the foregoing, if the defendants in any such claim or proceeding include both Mortgagor and any Indemnified Party and Mortgagor and such Indemnified Party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Parties that are different from or additional to those available to Mortgagor, such Indemnified Party shall have the right to select separate counsel reasonably acceptable to Mortgagor to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Party, provided that no compromise or settlement shall be entered without Mortgagor’s consent, which consent shall not be unreasonably withheld, conditioned or delayed. Within ten (10) Business Days of Upon demand, Mortgagor shall pay or, in the sole and absolute discretion of the Indemnified Parties, reimburse, the Indemnified Parties for the payment of reasonable out-of-pocket fees and disbursements of attorneys, engineers, environmental consultants, laboratories and other professionals in connection therewith.

Duty to Defend; Attorneys’ Fees and Other Fees and Expenses. Upon In connection with any indemnification obligations of Individual Borrower hereunder, upon written request by any Indemnified Party, Mortgagor Individual Borrower shall defend such Indemnified Party (if requested by any Indemnified Party, in the name of the Indemnified Party) by attorneys and other professionals reasonably approved by the Indemnified Parties (and attorneys and other professionals selected by Mortgagor and Individual Borrower’s insurance carrier shall be deemed approved by the Indemnified Parties, which approval shall not be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, if the defendants in any such claim or proceeding include both Mortgagor Individual Borrower, any other Borrower and any Indemnified Party Party, and Mortgagor Individual Borrower, any such other Borrower and such Indemnified Party shall have reasonably concluded that there are any legal defenses available to it and/or other Persons or Indemnified Parties that are different from or additional to those available to MortgagorIndividual Borrower or any other Borrower, then such Indemnified Party shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Party, provided that no compromise or settlement shall be entered without MortgagorIndividual Borrower’s consent, which consent shall not be unreasonably withheld, conditioned or delayed. Within ten (10) Business Days of Upon written demand, Mortgagor Individual Borrower shall pay or, in the sole and absolute discretion of the Indemnified Parties, reimburse, the Indemnified Parties for the payment of reasonable out-of-pocket fees and out of pocket disbursements of attorneys, engineers, environmental consultants, laboratories and other professionals in connection therewith.

Duty to Defend; Attorneys’ Fees and Other Fees and Expenses. Upon written request by any Indemnified Party, Mortgagor shall defend such Indemnified Party (if requested by any Indemnified Party, in the name of the Indemnified Party) by attorneys and other professionals selected by Mortgagor and reasonably approved by the Indemnified Parties, which approval shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, if the defendants in any such claim or proceeding include both Mortgagor and any Indemnified Party and Mortgagor and such Indemnified Party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Parties that are different from or additional in addition to those available to Mortgagor, such Indemnified Party shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Party, provided that no compromise or settlement shall be entered without Mortgagor’s consent, which consent shall not be unreasonably withheld, conditioned or delayed. Within ten (10) Business Days of Upon demand, Mortgagor shall pay or, in the sole and absolute discretion of the Indemnified Parties, reimburse, the Indemnified Parties for the payment of the reasonable out-of-pocket fees and disbursements of attorneys, engineers, environmental consultants, laboratories and other professionals actually incurred in connection therewith. Without the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed), no indemnifying party shall settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any indemnified party is an actual or potential party to such claim, action, suit or proceeding) unless the indemnifying party shall have given Lender reasonable prior written notice thereof and shall have obtained an unconditional release of each indemnified party hereunder from all liability arising out of such claim, action, suit or proceedings without any admission of guilt, liability, wrongdoing, or culpability by or on behalf of Lender (or any statement which could be interpreted as such an admission). If the defendants in any such action include both the Indemnified Party and the indemnifying party, without the prior written consent of the indemnifying party (which consent shall not be unreasonably withheld or delayed), no Indemnified Party shall settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any indemnified party is an actual or potential party to such claim, action, suit or proceeding) unless the Indemnified Party shall have obtained an unconditional release of each indemnifying party hereunder from all liability arising out of such claim, action, suit or proceedings.

Duty to Defend; Attorneys’ Fees and Other Fees and Expenses. If any of the Indemnified Parties claims indemnification hereunder, such Indemnified Party shall promptly notify Mortgagor in writing of the nature and basis of the claim or legal or administrative proceeding giving rise to such claim for indemnification (each, an “Indemnified Claim”). Upon written request by any Indemnified Party, Mortgagor shall defend such Indemnified Party (if requested by any Indemnified Party, in the name of the Indemnified Party) by attorneys and other professionals selected by Mortgagor and reasonably approved by the Indemnified PartiesParties and shall have the right to negotiate and enter into and/or consent to any settlement, subject to the prior approval of the Indemnified Party (which approval shall not be unreasonably withheld), conditioned or delayedprovided that (x) such approval shall not be required in connection with any settlement which includes any unconditional release of the Indemnified Party and all related actions for all liability for which the Indemnified Party is seeking indemnification and (y) there is no admission of wrongdoing on the part of the Indemnified Party. If Mortgagor has assumed the defense of any action brought against the Indemnified Parties, then the Indemnified Parties shall not settle such action without the consent of Mortgagor (which consent shall not be unreasonably withheld), provided that (x) such consent shall not be required in connection with any settlement which includes any unconditional release of the Indemnified Party and all related actions for all liability for which the Indemnified Party is seeking indemnification and (y) there is no admission of wrongdoing on the part of the Indemnified Party. Notwithstanding the foregoing, if the defendants in any such claim or proceeding include both Mortgagor and any Indemnified Party and Mortgagor and such Indemnified Party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Parties that are different from or additional in addition to those available to Mortgagor, such Indemnified Party shall have the right to reasonably select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Party, ; provided that no compromise or settlement shall be entered without Mortgagor’s consent, which consent Mortgagor shall not be unreasonably withheld, conditioned liable for the expenses of more than one such separate counsel unless an Indemnified Party shall have reasonably concluded that there may be legal defenses available to it that are different from or delayedin addition to or in conflict with those available to another Indemnified Party. Within ten (10) Business Days of demandUpon demand and subject to the limitations set forth in this Section 8.02, Mortgagor shall pay or, in the sole and absolute discretion of the Indemnified Parties, reimburse, the Indemnified Parties for the payment of the reasonable out-of-pocket out‑of‑pocket fees and disbursements of attorneys, engineers, environmental consultants, laboratories and other professionals in connection therewith.

Duty to Defend; Attorneys’ Fees and Other Fees and Expenses. Upon written request If any of the Indemnified Parties claims indemnification hereunder, such Indemnified Party shall promptly notify Borrower of the nature and basis of the claim or legal or administrative proceeding giving rise to such claim or indemnification (each, an “Indemnified Claim”). After notice by any the Indemnified Party, Mortgagor Borrower shall defend such Indemnified Party (if requested by any Indemnified Party, in the name of the Indemnified Party) by attorneys and other professionals selected by Mortgagor and reasonably approved by the Indemnified PartiesParty and shall have the right to negotiate and enter into and/or consent to any settlement, subject to the prior approval of the Indemnified Party (which approval shall not be unreasonably withheld), conditioned or delayedprovided that (x) such approval shall not be required in connection with any settlement which includes any unconditional release of the Indemnified Party and all related actions for all liability for which the Indemnified Party is seeking indemnification and (y) there is no admission of wrongdoing on the part of the Indemnified Party. If Borrower has assumed the defense of any action brought against the Indemnified Parties, then the Indemnified Parties shall not settle such action without the consent of Borrower. Notwithstanding the foregoing, if the defendants in any such claim or proceeding include both Mortgagor and any Indemnified Party and Mortgagor and such Indemnified Party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Parties that are different from may engage their own attorneys and other professionals to defend or additional to those available to Mortgagor, such Indemnified Party shall have the right to select separate counsel to assert such legal defenses and to otherwise participate assist them in the event the defense as conducted by Borrower is not proceeding or being conducted in a satisfactory manner or that a conflict of interest exists between any of the parties represented by Borrower’s counsel in such action or proceeding; provided, however, (x) that so long as no Event of Default exists, the Indemnified Parties shall provide Borrower with fifteen (15) days prior written notice of any determination pursuant to this Section 9.4 (unless the Indemnified Parties determine, in their sole discretion, that their interest may be adversely affected prior to the expiration of such notice period, in which case, the Indemnified Parties may take immediate action on behalf and send written notice to Borrower thereafter); and (y) shall not enter into any settlement of such Indemnified Party, provided that no compromise or settlement shall be entered a proceeding without Mortgagor’s consentthe consent of Borrower, which consent shall not be unreasonably withheld, conditioned or delayed. Within ten (10) Business Days Borrower shall not be liable for the expenses of more than one such separate counsel unless an Indemnified Party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Party. Upon demand, Mortgagor Borrower shall pay or, in the sole and absolute discretion of the Indemnified Parties, reimburse, the Indemnified Parties for the payment of reasonable out-of-pocket fees and disbursements of attorneys, engineers, environmental consultants, laboratories and other professionals in connection therewith.

Duty to Defend; Attorneys’ Fees and Other Fees and Expenses. Upon In connection with any indemnification obligations of Mortgagor hereunder, upon written request by any Indemnified Party, Mortgagor each of Borrower and Operator shall defend such Indemnified Party (if requested by any Indemnified Party, in the name of the Indemnified Party) by attorneys and other professionals reasonably approved by the Indemnified Parties (and attorneys and other professionals selected by Mortgagor and Mortgagor’s insurance carrier shall be deemed approved by the Indemnified Parties, which approval shall not be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, if the defendants in any such claim or proceeding include both Mortgagor and any Indemnified Party and Mortgagor and such Indemnified Party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Parties that are different from or additional to those available to Mortgagor, such Indemnified Party shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Party, provided that no compromise or settlement shall be entered without Mortgagor’s consent, which consent shall not be unreasonably withheld, conditioned or delayed. Within ten (10) Business Days of Upon demand, Mortgagor shall pay or, in the sole and absolute discretion of the Indemnified Parties, reimburse, the Indemnified Parties for the payment of reasonable fees and out-of-pocket fees and disbursements of attorneys, engineers, environmental consultants, laboratories and other professionals in connection therewith.

Duty to Defend; Attorneys’ Fees and Other Fees and Expenses. Upon written request by any Indemnified Party, Mortgagor Grantor shall defend such Indemnified Party (if requested by any Indemnified Party, in the name of the Indemnified Party) by attorneys and other professionals selected by Mortgagor and approved by such Indemnified Party, in the reasonable discretion of such Indemnified Parties, which approval shall not be unreasonably withheld, conditioned or delayedParty. Notwithstanding the foregoing, if the defendants in any such claim or proceeding include both Mortgagor Grantor and any Indemnified Party and Mortgagor Grantor and such Indemnified Party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Parties that are different from or additional to those available to MortgagorGrantor, such Indemnified Party shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Party, provided that no compromise or settlement shall be entered without Mortgagor’s consentthe consent of Grantor, which consent shall not be unreasonably withheld, conditioned or delayed. Within ten (10) Business Days of Upon demand, Mortgagor Grantor shall pay or, in the sole and absolute discretion of the Indemnified Parties, reimburse, the Indemnified Parties for the payment of of, to the extent permitted by applicable law, reasonable out-of-pocket fees and disbursements of attorneys, engineers, environmental consultants, laboratories and other professionals in connection therewith. If any action or proceeding is commenced to which action or proceeding Grantee is made a party or is a party-in-interest (including, but not limited to, any bankruptcy proceeding, lien foreclosure action or other action affecting the title or encumbrances upon the Premises, whether or not commenced or initiated by Grantor), or in which it becomes necessary to defend or uphold the lien of this Deed to Secure Debt, Grantor shall, on demand, reimburse Grantee for all expenses (including, without limitation, reasonable attorneys’ fees and disbursements and reasonable appellate attorneys’ fees and disbursements) incurred by Grantee in any such action or proceeding in the manner set forth in, and in accordance with the terms of Section 10.3 of the Credit Agreement, and all such expenses shall be secured hereby. In any action or proceeding to foreclose this Deed to Secure Debt or to recover or collect the Obligations, the provisions of law relating to the recovering of costs, disbursements and allowances shall prevail unaffected by this covenant.

Duty to Defend; Attorneys’ Fees and Other Fees and Expenses. Upon written request by any Indemnified Party, Mortgagor Borrower shall defend such Indemnified Party (if requested by any Indemnified Party, in the name of the Indemnified Party) by attorneys and other professionals selected by Mortgagor and reasonably approved by the Indemnified Parties. Notwithstanding the foregoing, any Indemnified Parties may, in their sole discretion, engage their own attorneys and other professionals to defend or assist them; provided, however, (a) the fees and expenses of such attorneys and other professionals shall be at the expense of such Indemnified Party unless (i) the employment thereof has been specifically authorized by Borrower; or (ii) in such claim or proceeding there is, in the reasonable opinion of independent counsel, a conflict of interest concerning any material issue between the position of Borrower and such Indemnified Party, (b) if the Indemnified Party decides to engage their own attorneys and other professionals due to a conflict of interest, then such Indemnified Party shall keep Borrower reasonably informed of the claim or action, and (c) no Indemnified Party or their independently engaged attorneys shall settle any such suit or claim without the approval of Borrower, which approval shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, if the defendants in any such claim or proceeding include both Mortgagor and any Indemnified Party and Mortgagor and such Indemnified Party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Parties that are different from or additional to those available to Mortgagor, such Indemnified Party shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Party, provided that no compromise or settlement shall be entered without Mortgagor’s consent, which consent shall not be unreasonably withheld, conditioned or delayed. Within ten (10) Business Days of Upon demand, Mortgagor Borrower shall pay or, in the sole and absolute -74- 83 discretion of the Indemnified Parties, reimburse, the Indemnified Parties for the payment of reasonable out-of-pocket fees and disbursements of attorneys, engineers, environmental consultants, laboratories and other professionals required under this Section 13.3 to be paid by Borrower in connection therewith.

Duty to Defend; Attorneys’ Fees and Other Fees and Expenses. Upon written request by any Indemnified PartyLender Indemnitee, Mortgagor Borrower shall defend such Indemnified Party same (if requested by any Indemnified PartyLender Indemnitee, in the name of the Indemnified PartyLender Indemnitee) by attorneys and other professionals selected by Mortgagor and reasonably approved by the Indemnified Parties, which approval shall not be unreasonably withheld, conditioned or delayedLender Indemnitee. Notwithstanding the foregoing, if the defendants in any such claim or proceeding include both Mortgagor Borrower and any Indemnified Party and Mortgagor Lender Indemnitee and such Indemnified Party shall have reasonably Lender Indemnitee has concluded that there are any legal defenses available to it and/or other Indemnified Parties such Lender Indemnitee that are different from or additional to those available to MortgagorBorrower or that the Lender Indemnitees are not properly being represented (in each case, as determined by such Lender Indemnitee, in its reasonable discretion), such Indemnified Party shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action Lender Indemnitee may (for itself and/or on behalf of any other Lender Indemnitees), engage its own attorneys to defend and other qualified professionals to assist such Indemnified PartyLender Indemnitees, provided and, at the option of Lender Indemnitees, their attorneys shall act as co-counsel in connection with the resolution of any claim or proceeding; provided, however, that no compromise upon Lender Indemnitees reasonably determining that the attorneys and/or professionals engaged by Borrower are not adequately representing the Lender Indemnitees, the attorneys for the Lender Indemnitees shall control the resolution of such claim or proceeding (except that such attorneys shall not be entitled or agree to a settlement shall be entered of such claim or proceeding without MortgagorBorrower’s consent, which consent shall not be unreasonably withheld, conditioned or delayed, unless Lender Indemnitee agrees in writing to release Borrower from any and all obligations with respect to such settlement). Within ten (10) Business Days of Upon demand, Mortgagor Borrower shall pay or, in the sole and absolute discretion of the Indemnified PartiesLender Indemnitees, reimburse, the Indemnified Parties Lender Indemnitees for the payment of reasonable out-of-pocket fees and disbursements of attorneys, engineers, environmental consultants, laboratories and other professionals in connection therewith.