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

Duty to Defend and Attorneys and Other Fees and Expenses. In case any Losses are imposed upon or incurred by or asserted against any Indemnified Parties in respect of which indemnification may be sought by such Indemnified Parties pursuant hereto, such Indemnified Parties shall give prompt written notice thereof to Indemnitor, which notice shall include all documents and information in the possession of or under the control of such Indemnified Parties relating to such Losses and shall specifically state that indemnification for such Losses is being sought pursuant this Agreement; provided, however, that the failure of such Indemnified Parties to so notify Indemnitor shall not limit or affect such Indemnified Parties' rights to be indemnified pursuant to this Agreement except to the extent Indemnitor is materially prejudiced by such failure. Upon receipt of such notice of Losses (together with such documents and information from such Indemnified Party), Indemnitor shall, at its sole cost and expense, in good faith defend any such Losses with counsel reasonably satisfactory to such Indemnified Parties (it being understood that counsel selected by Indemnitor's insurance carrier shall be deemed to be acceptable to such Indemnified Parties, provided such insurer is an acceptable insurer under the Loan Documents or otherwise was accepted by Indemnitee as an insurer), which counsel may, without limiting the rights of such Indemnified Parties pursuant to the next succeeding sentence of this Paragraph 5, also represent Indemnitor in such investigation, action or proceeding. In the alternative, such Indemnified Parties may elect to conduct their own defense through counsel of its own choosing and at the reasonable expense of Indemnitor, if (A) such Indemnified Parties reasonably determines that the conduct of their defense by Indemnitor could be materially prejudicial to its interests, (B) Indemnitor refuses to defend, or (C) Indemnitor shall have failed, in such Indemnified Parties' reasonable judgment, to defend the Losses in good faith (unless such Losses being defended by Indemnitor's insurance carrier, provided such insurer is an acceptable insurer under the Loan Documents or otherwise was accepted by Indemnitee as an insurer), and, at the option of such Indemnified Parties, their attorneys shall control the resolution of any claim or proceeding against the Indemnified Parties, provided that no compromise or settlement shall be entered without Indemnitor's consent, which consent shall not be unreasonably withheld. Upon demand, Indemnitor shall pay or, in the sole and absolute discretion of the Indemnified Parties, reimburse, the Indemnified Parties for the payment of reasonable fees and disbursements of attorneys, engineers, environmental consultants, laboratories and other professionals in connection therewith.

Duty to Defend and Attorneys and Other Fees and Expenses. In case Upon written request by Administrative Agent (for itself and/or on behalf of any Losses are imposed upon or incurred other Indemnified Parties), Indemnitor shall defend same (if requested by or asserted against any Indemnified Parties in respect of which indemnification may be sought by such Indemnified Parties pursuant heretoAdministrative Agent, such Indemnified Parties shall give prompt written notice thereof to Indemnitor, which notice shall include all documents and information in the possession name of or under the control of such Indemnified Parties relating to such Losses and shall specifically state that indemnification for such Losses is being sought pursuant this Agreement; provided, however, that the failure of such Indemnified Parties to so notify Indemnitor shall not limit or affect Administrative Agent and/or any such Indemnified Parties' rights ) from any Losses for which Indemnitor has agreed to be indemnified pursuant to this Agreement except to the extent Indemnitor is materially prejudiced by such failure. Upon receipt of such notice of Losses (together with such documents and information from such Indemnified Party), Indemnitor shall, at its sole cost and expense, in good faith defend any such Losses with counsel reasonably satisfactory to such Indemnified Parties (it being understood that counsel selected by Indemnitor's insurance carrier shall be deemed to be acceptable to such Indemnified Parties, provided such insurer is an acceptable insurer under the Loan Documents or otherwise was accepted by Indemnitee as an insurer), which counsel may, without limiting the rights of such indemnify Indemnified Parties pursuant to the next succeeding sentence Section 4 of this Paragraph 5Agreement (the “Indemnified Losses”), also represent Indemnitor by attorneys and other professionals reasonably approved in such investigationwriting by Administrative Agent. Notwithstanding the foregoing, action Administrative Agent may (for itself and/or on behalf of any other Indemnified Parties), in its sole and absolute discretion, engage its own attorneys and other professionals to defend or proceeding. In the alternative, assist Administrative Agent and/or such Indemnified Parties may elect to conduct their own defense through counsel of its own choosing and at the reasonable expense of Indemnitor, if (A) such in connection with Indemnified Parties reasonably determines that the conduct of their defense by Indemnitor could be materially prejudicial to its interests, (B) Indemnitor refuses to defend, or (C) Indemnitor shall have failed, in such Indemnified Parties' reasonable judgment, to defend the Losses in good faith (unless such Losses being defended by Indemnitor's insurance carrier, provided such insurer is an acceptable insurer under the Loan Documents or otherwise was accepted by Indemnitee as an insurer)Losses, and, at the option of such Indemnified PartiesAdministrative Agent, their its attorneys shall control the resolution of any claim or proceeding against regarding the Indemnified PartiesLosses, provided providing that no compromise or settlement shall be entered without Indemnitor's ’s consent, which consent shall not be unreasonably withheld. Upon demandThe Indemnified Parties shall use their reasonable efforts to use a single outside counsel for all Indemnified Parties taken as a whole (and, if reasonably necessary, one local counsel in any relevant material jurisdiction) with exceptions in the case of conflicts of interest and, in all cases, the total legal fees for all counsel representing the Indemnified Parties must be reasonable taken as a whole, taking into account the nature of the investigative, administrative or judicial proceeding or hearing involved and, in the case of multiple counsel, the necessity of the same. Within thirty (30) days following Indemnitors’ receipt of a written demand (together with invoices or other customary backup documentation supporting such reimbursement request) from Administrative Agent, Indemnitor shall pay or, in the sole and absolute discretion of the Indemnified Parties, reimburse, the Indemnified Parties reimburse Administrative Agent for the payment of all reasonable fees and disbursements of out-of-pocket expenses (including reasonable out-of-pocket fees, expenses and charges for attorneys, engineers, environmental consultants, laboratories and other professionals professionals) as they are incurred in connection therewithwith any of the foregoing.

Duty to Defend and Attorneys and Other Fees and Expenses. In case any Losses are imposed upon or incurred Upon written request by or asserted against any Indemnified Parties in respect of which indemnification may be sought by such Party, Indemnitor shall defend itself and Indemnified Parties pursuant hereto(if requested by any Indemnified Party, such Indemnified Parties shall give prompt written notice thereof to Indemnitor, which notice shall include all documents and information in the possession of or under the control name of such Indemnified Parties relating to such Losses Party) by attorneys and shall specifically state that indemnification for such Losses is being sought pursuant this Agreement; provided, however, that the failure of such other Environmental Indemnity professionals approved by Indemnified Parties to so notify Indemnitor shall (such approval not limit or affect such Indemnified Parties' rights to be indemnified pursuant unreasonably withheld) from and against any action, suit, claim, demand, dispute or proceeding (collectively, an “Enforcement Action”) arising or in any way connected, whether directly or indirectly, to this Agreement except to any actual or alleged violation of the extent Indemnitor is materially prejudiced by such failurerepresentations, warranties and covenants in Sections 2 and 3. Upon receipt of such notice of Losses (together with such documents Notwithstanding the foregoing, Indemnified Parties may, in their discretion and information from such Indemnified Party), Indemnitor shall, at its Indemnitor's sole cost and expense, in good faith engage their own attorneys and other professionals to defend them from and against, or assist them in, any such Losses with counsel reasonably satisfactory Enforcement Action. Indemnitor may not compromise or settle any such Enforcement Action without the consent of Indemnitee (which consent may be issued or withheld in Indemnitee’s judgment) unless the claimant agrees as part of the compromise or settlement that Indemnified Parties shall have no responsibility or liability for the payment or discharge of any amount agreed upon or other obligation to take any other action or any other exposure to liability to such Indemnified Parties claimant (it being understood that counsel selected by Indemnitor's insurance carrier in which case, Indemnitee’s consent shall not be deemed to be acceptable to such required). Notwithstanding the foregoing and at the option of Indemnified Parties, provided such insurer is an acceptable insurer under the Loan Documents or otherwise was accepted by Indemnitee as an insurer), which counsel may, without limiting the rights of such if Indemnified Parties pursuant engage their own attorneys to the next succeeding sentence of this Paragraph 5defend them from and against, also represent Indemnitor in such investigationor assist them in, action or proceeding. In the alternativeany Enforcement Action, such Indemnified Parties may elect to conduct their own defense through counsel of its own choosing and at the reasonable expense of Indemnitor, if (A) such Indemnified Parties reasonably determines that the conduct of their defense by Indemnitor could be materially prejudicial to its interests, (B) Indemnitor refuses to defend, or (C) Indemnitor shall have failed, in such Indemnified Parties' reasonable judgment, to defend the Losses in good faith (unless such Losses being defended by Indemnitor's insurance carrier, provided such insurer is an acceptable insurer under the Loan Documents or otherwise was accepted by Indemnitee as an insurer), and, at the option of such Indemnified Parties, their attorneys shall control the resolution of any claim or proceeding against the Indemnified PartiesEnforcement Action, provided that no compromise or settlement shall be entered without Indemnitor's consent, consent (which consent shall not be unreasonably withheld). Upon demandWithin the Demand Period, Indemnitor shall pay or, in the sole and absolute discretion of the Indemnified Parties, reimburse, the reimburse Indemnified Parties for the payment of payments made, for all reasonable fees and disbursements of attorneys, engineers, environmental consultants, laboratories and other professionals in connection therewithengaged by and/or on behalf of Indemnified Parties.

Duty to Defend and Attorneys and Other Fees and Expenses. In case any Losses are imposed upon or incurred Upon written request by or asserted against any Indemnified Parties Party, Indemnitor shall defend same (if requested by any Indemnified Party, in respect the name of which indemnification may be sought the Indemnified Party) by such attorneys and other professionals reasonably approved by the Indemnified Parties. Notwithstanding the foregoing, (i) upon the occurrence and during the continuance of an Event of Default, or (ii) if Indemnified Parties pursuant heretoreasonably determine that (a) Indemnitor’s attorneys and professionals are not defending any claim or proceeding in a manner reasonably acceptable to Indemnified Parties, or (b) their interests, in connection with any claims or proceedings, conflict with those of any Indemnified Party or Indemnitor, such Indemnified Parties shall give prompt written notice thereof to Indemnitor, which notice shall include all documents and information in the possession of or under the control of such Indemnified Parties relating to such Losses and shall specifically state that indemnification for such Losses is being sought pursuant this Agreement; provided, however, that the failure of such Indemnified Parties to so notify Indemnitor shall not limit or affect such Indemnified Parties' rights to be indemnified pursuant to this Agreement except to the extent Indemnitor is materially prejudiced by such failure. Upon receipt of such notice of Losses (together with such documents and information from such Indemnified Party), Indemnitor shall, at its sole cost and expense, in good faith defend any such Losses with counsel reasonably satisfactory to such Indemnified Parties (it being understood that counsel selected by Indemnitor's insurance carrier shall be deemed to be acceptable to such Indemnified Parties, provided such insurer is an acceptable insurer under the Loan Documents or otherwise was accepted by Indemnitee as an insurer), which counsel may, without limiting the rights of such Indemnified Parties pursuant to the next succeeding sentence of this Paragraph 5, also represent Indemnitor in such investigation, action or proceeding. In the alternative, such Indemnified Parties may elect to conduct engage their own defense through counsel of its own choosing attorneys and at the reasonable expense of Indemnitor, if (A) such Indemnified Parties reasonably determines that the conduct of their defense by Indemnitor could be materially prejudicial to its interests, (B) Indemnitor refuses to defend, or (C) Indemnitor shall have failed, in such Indemnified Parties' reasonable judgment, other professionals to defend the Losses in good faith (unless such Losses being defended by Indemnitor's insurance carrier, provided such insurer is an acceptable insurer under the Loan Documents or otherwise was accepted by Indemnitee as an insurer)assist them, and, at the option of such Indemnified Parties, their attorneys shall control the resolution of any claim or proceeding against proceeding, provided, however, so long as no Event of Default then exists, Indemnified Parties shall not, without the Indemnified Parties, provided that no compromise or settlement shall be entered without prior written consent of Indemnitor's consent, which consent shall not be unreasonably withheld, delayed or conditioned, (1) settle, compromise or prejudice Indemnitor or (2) consent to the entry of any judgment against Indemnitor, in any such claim or proceeding, unless the Indemnified Parties agree in writing to release Indemnitor from any and all obligations with respect to such settlement, compromise or judgment. Upon demand, Indemnitor shall pay or, in the sole and absolute discretion of the Indemnified Parties, reimburse, the Indemnified Parties for the payment of reasonable fees and disbursements of third party attorneys, engineers, environmental consultants, laboratories and other professionals in connection therewith, provided, however, lndemnitor shall not be obligated to pay for fees and disbursements of more than one set of attorneys (in addition to Indemnitor’s own attorneys) regardless of the number of Indemnified Parties.