Common use of Duty to Defend, Costs and Expenses Clause in Contracts

Duty to Defend, Costs and Expenses. Upon request, whether any Borrower’s obligation to indemnify Lender arises under Article VIII or in the Documents, each Borrower shall defend the Indemnified Parties (in the applicable Borrower’s or the Indemnified Parties’ names) by attorneys and other professionals reasonably approved by the Indemnified Parties; provided that, with respect to any insured matter, the Indemnified Parties shall be deemed to have approved attorneys and other professionals selected by the applicable insurance companies with respect to such matter absent an ethical conflict of interest or divergence of interests. Notwithstanding the foregoing, if any Indemnified Party notifies Borrower in writing that under applicable ethics rules an actual conflict of interest exists which precludes the attorney chosen by Borrower from undertaking the defense of such Indemnified Party (it being understood that the joint representation of Borrower and such Indemnified Party shall not necessarily constitute such a conflict of interest), such Indemnified Party may, in its sole and absolute discretion, engage its own attorneys and other professionals to defend or assist it with respect to such matters and, at the option of the Indemnified Party, its attorneys shall control the resolution of any such claims or proceedings. Upon demand, each Borrower shall pay or, in the sole discretion of the Indemnified Parties, reimburse and/or indemnify the Indemnified Parties for all Costs imposed on, incurred by, or asserted against the Indemnified Parties by reason of any items set forth in this Article VIII and/or the enforcement or preservation of the Indemnified Parties’ rights under the Documents; provided, however, that each Borrower shall not, with respect to any action brought against any Indemnified Party, be liable for the fees and expenses of more than one firm (in addition to any local counsel) for such Indemnified Party unless (i) the ethical constraints described in the preceding sentence require that any Indemnified Party engage separate counsel or (ii) the relevant Indemnified Party has reasonably concluded (in good faith and based upon advice of counsel) that there may be legal defenses available to it that are different from or in addition to those available to the other relevant Indemnified Parties. Any amount payable to the Indemnified Parties under this Section 8.07 shall (a) be deemed a demand obligation, (b) be part of the Pool Obligations, (c) bear interest from the date of demand at the Default Rate, until paid if not paid on demand, and (d) be secured by the Documents.

Duty to Defend, Costs and Expenses. Upon request, whether any Borrower’s 's obligation to indemnify Lender arises under Article VIII or in the Documents, each Borrower shall defend the Indemnified Parties (in the applicable Borrower’s 's or the Indemnified Parties’ namesParties name) by attorneys and other professionals reasonably approved by the Indemnified Parties; , provided that, with respect to any insured matter, such response is not unreasonably delayed and such approval is not unreasonably conditioned or withheld (the Indemnified Parties shall be deemed to have approved attorneys and other professionals selected by the applicable insurance companies with respect to such matter absent an ethical conflict of interest or divergence of interests"Approved Attorneys"). Notwithstanding the foregoing, if any the Indemnified Party notifies Borrower Parties (i) may, after a determination by the Indemnified Parties in writing that under applicable ethics rules an actual conflict of interest exists which precludes the attorney chosen by Borrower from undertaking the defense of such Indemnified Party (it being understood their reasonable judgment that the joint representation of Borrower and such Approved Attorneys are not appropriately representing Indemnified Party shall not necessarily constitute such a conflict of interest), such Indemnified Party may, in its sole and absolute discretionParties' interests, engage its their own attorneys and other professionals professionals, at the sole cost and expense of Borrower, to defend or assist it with respect the Indemnified Parties or (ii) may, in their sole discretion, engage their own attorneys and professionals, at the sole cost and expense of the Indemnified Parties, to such matters defend or assist the Indemnified Parties and, at the their option of the Indemnified Partyin either circumstance, its their attorneys shall control the resolution of any such claims or proceedingsproceedings pertaining to ERISA. Upon demand, each Borrower shall pay or, in the sole discretion of the Indemnified Parties, reimburse and/or indemnify the Indemnified Parties for all Costs imposed on, incurred by, or asserted against the Indemnified Parties by reason of any items set forth in this Article VIII and/or the enforcement or preservation of the Indemnified Parties’ ' rights under the Documents; provided, however, that each Borrower shall not, with respect to any action brought against any Indemnified Party, be liable for the fees and expenses of more than one firm Documents (except as noted in addition to any local counsel) for such Indemnified Party unless (i) the ethical constraints described in the preceding sentence require that any Indemnified Party engage separate counsel or (ii) the relevant Indemnified Party has reasonably concluded (in good faith and based upon advice of counsel) that there may be legal defenses available to it that are different from or in addition to those available to the other relevant Indemnified Partiesthis paragraph). Any amount payable to the Indemnified Parties under this Section 8.07 shall (a) be deemed a demand obligation, (b) be part of the Pool Obligations, (c) bear interest from the date of demand at the applicable interest rate specified in the Note, which shall be the Default RateRate unless prohibited by Laws, until paid if not paid on demand, and (d) be secured by the Documentsthis Instrument.

Duty to Defend, Costs and Expenses. Upon request, whether any Borrower’s obligation to indemnify Lender arises under Article VIII or in the Documents, each Borrower shall defend the Indemnified Parties (in the applicable Borrower’s or the Indemnified Parties’ names) by attorneys and other professionals reasonably approved by the Indemnified Parties; provided that, with respect to any Prudential Loan Nos. 706109200, 706109202-203 & 706109205-206 CNL MOB Portfolio Loan Agreement insured matter, the Indemnified Parties shall be deemed to have approved attorneys and other professionals selected by the applicable insurance companies with respect to such matter absent an ethical conflict of interest or divergence of interests. Notwithstanding the foregoing, if any Indemnified Party notifies Borrower Borrowers in writing that under applicable ethics rules an actual conflict of interest exists which precludes the attorney chosen by Borrower Borrowers from undertaking the defense of such Indemnified Party (it being understood that the joint representation of Borrower Borrowers and such Indemnified Party shall not necessarily constitute such a conflict of interest), such Indemnified Party may, in its sole and absolute discretion, engage its own attorneys and other professionals to defend or assist it with respect to such matters and, at the option of the Indemnified Party, its attorneys shall control the resolution of any such claims or proceedings. Upon demand, each Borrower shall pay or, in the sole discretion of the Indemnified Parties, reimburse and/or indemnify the Indemnified Parties for all Costs imposed on, incurred by, or asserted against the Indemnified Parties by reason of any items set forth in this Article VIII and/or the enforcement or preservation of the Indemnified Parties’ rights under the Documents; provided, however, that each Borrower shall not, with respect to any action brought against any Indemnified Party, be liable for the fees and expenses of more than one firm (in addition to any local counsel) for such Indemnified Party unless (i) the ethical constraints described in the preceding sentence require that any Indemnified Party engage separate counsel or (ii) the relevant Indemnified Party has reasonably concluded (in good faith and based upon advice of counsel) that there may be legal defenses available to it that are different from or in addition to those available to the other relevant Indemnified Parties. Any amount payable to the Indemnified Parties under this Section 8.07 shall (a) be deemed a demand obligation, (b) be part of the Pool Obligations, (c) bear interest from the date of demand at the Default Rate, until paid if not paid on demand, and (d) be secured by the Documents.

Duty to Defend, Costs and Expenses. Upon request, whether any Borrower’s obligation to indemnify Lender arises under Article VIII or in the Documents, each Borrower shall defend the Indemnified Parties (in the applicable Borrower’s or the Indemnified Parties’ names) by attorneys and other professionals reasonably approved by the Indemnified Parties; provided that, with respect to any insured matter, the Indemnified Parties shall be deemed to have approved attorneys and other Prudential Loan Nos. 706109322, 706109323, 706109324, 706109325, 706109326, 706109327, 706109328, 706109329, 706109333, 706109334, 706109335 and 706109336 CNL BV Portfolio Loan Agreement professionals selected by the applicable insurance companies with respect to such matter absent an ethical conflict of interest or divergence of interests. Notwithstanding the foregoing, if any Indemnified Party notifies Borrower in writing that under applicable ethics rules an actual conflict of interest exists which precludes the attorney chosen by Borrower from undertaking the defense of such Indemnified Party (it being understood that the joint representation of Borrower and such Indemnified Party shall not necessarily constitute such a conflict of interest), such Indemnified Party may, in its sole and absolute discretion, engage its own attorneys and other professionals to defend or assist it with respect to such matters and, at the option of the Indemnified Party, its attorneys shall control the resolution of any such claims or proceedings. Upon demand, each Borrower shall pay or, in the sole discretion of the Indemnified Parties, reimburse and/or indemnify the Indemnified Parties for all Costs imposed on, incurred by, or asserted against the Indemnified Parties by reason of any items set forth in this Article VIII and/or the enforcement or preservation of the Indemnified Parties’ rights under the Documents; provided, however, that each Borrower shall not, with respect to any action brought against any Indemnified Party, be liable for the fees and expenses of more than one firm (in addition to any local counsel) for such Indemnified Party unless (i) the ethical constraints described in the preceding sentence require that any Indemnified Party engage separate counsel or (ii) the relevant Indemnified Party has reasonably concluded (in good faith and based upon advice of counsel) that there may be legal defenses available to it that are different from or in addition to those available to the other relevant Indemnified Parties. Any amount payable to the Indemnified Parties under this Section 8.07 shall (a) be deemed a demand obligation, (b) be part of the Pool Obligations, (c) bear interest from the date of demand at the Default Rate, until paid if not paid on demand, and (d) be secured by the Documents.

Duty to Defend, Costs and Expenses. Upon request, whether any BorrowerXxxxxxxx’s obligation to indemnify Lender arises under this Article VIII or in the Documents, each Borrower shall defend the Indemnified Parties (in the applicable Borrower’s or the Indemnified Parties’ namesname) by attorneys and other professionals selected by Xxxxxxxx and reasonably approved by the Indemnified Parties; provided that, with respect to any insured matter, the Indemnified Parties shall be deemed to have approved attorneys and other professionals selected by the applicable insurance companies with respect to such matter absent an ethical conflict of interest or divergence of interestsXxxxxx. Notwithstanding the foregoing, if any the Indemnified Party notifies Borrower in writing that under applicable ethics rules an actual conflict of interest exists which precludes the attorney chosen by Borrower from undertaking the defense of such Indemnified Party (it being understood that the joint representation of Borrower and such Indemnified Party shall not necessarily constitute such a conflict of interest), such Indemnified Party Parties may, in its their sole and absolute discretion, engage its their own attorneys and other professionals to defend or assist it with respect to such matters and, them at the option expense of the Indemnified PartyParties; provided, its however, if, in the reasonable judgment of the Indemnified Parties, (i) the defense or assistance is not proceeding or being conducted in a satisfactory manner or (ii) there is a conflict of interest between Xxxxxxxx and any of the Indemnified Parties, such defense or assistance shall be at Borrower’s expense and the Indemnified Parties may elect that their attorneys shall control the resolution of any such claims or proceedings. Upon demand, each Borrower Xxxxxxxx shall pay or, in the sole discretion of the Indemnified PartiesLender, reimburse and/or indemnify the Indemnified Parties for all Costs imposed on, incurred by, or asserted against the Indemnified Parties by reason of any items set forth in this Article VIII and/or the enforcement or preservation of the Indemnified Parties’ rights under the Documents; provided, however, that each Borrower shall not, with respect to any action brought against any Indemnified Party, be liable for the fees and expenses of more than one firm (in addition to any local counsel) for such Indemnified Party unless (i) the ethical constraints described in the preceding sentence require that any Indemnified Party engage separate counsel or (ii) the relevant Indemnified Party has reasonably concluded (in good faith and based upon advice of counsel) that there may be legal defenses available to it that are different from or in addition to those available to the other relevant Indemnified Parties. Any amount payable to the Indemnified Parties under this Section 8.07 shall (ai) be deemed an obligation due within thirty (30) days after demand (or a demand obligationobligation if incurred after an Event of Default), (bii) be part of the Pool Obligations, (ciii) bear interest from the date of demand at the applicable interest rate specified in the Note, which shall be the Default RateRate unless prohibited by Laws, until paid if not paid on demandwhen due, and (div) be secured by the Documentsthis Instrument.

Duty to Defend, Costs and Expenses. Upon request, whether any Borrower’s 's obligation to indemnify Lender arises under Article VIII or in the Documents, each Borrower shall defend the Indemnified Parties (in the applicable Borrower’s 's or the Indemnified Parties’ namesParties name) by attorneys and other professionals reasonably approved by the Indemnified Parties; , provided that, with respect to any insured matter, such response is not unreasonably delayed and such approval is not unreasonably conditioned or withheld (the Indemnified Parties shall be deemed to have approved attorneys and other professionals selected by the applicable insurance companies with respect to such matter absent an ethical conflict of interest or divergence of interests"Approved Attorneys"). Notwithstanding the foregoing, if any the Indemnified Party notifies Borrower Parties (i) may after a determination by the Indemnified Parties in writing that under applicable ethics rules an actual conflict of interest exists which precludes the attorney chosen by Borrower from undertaking the defense of such Indemnified Party (it being understood their reasonable judgment that the joint representation of Borrower and such Approved Attorneys are not appropriately representing Indemnified Party shall not necessarily constitute such a conflict of interest), such Indemnified Party may, in its sole and absolute discretionParties' interests, engage its their own attorneys and other professionals professionals, at the sole cost and expense of Borrower, to defend or assist it with respect the Indemnified Parties or (ii) may, in their sole discretion, engage their own attorneys and professionals, at the sole cost and expense of the Indemnified Parties, to such matters defend or assist the Indemnified Parties and, at the their option of the Indemnified Partyin either circumstance, its their attorneys shall control the resolution of any such claims or proceedingsproceedings pertaining to ERISA. Upon demand, each Borrower shall pay or, in the sole discretion of the Indemnified Parties, reimburse and/or indemnify the Indemnified Parties for all Costs imposed on, incurred by, or asserted against the Indemnified Parties by reason of any items set forth in this Article VIII and/or the enforcement or preservation of the Indemnified Parties’ ' rights under the Documents; provided, however, that each Borrower shall not, with respect to any action brought against any Indemnified Party, be liable for the fees and expenses of more than one firm Documents (except as noted in addition to any local counsel) for such Indemnified Party unless (i) the ethical constraints described in the preceding sentence require that any Indemnified Party engage separate counsel or (ii) the relevant Indemnified Party has reasonably concluded (in good faith and based upon advice of counsel) that there may be legal defenses available to it that are different from or in addition to those available to the other relevant Indemnified Partiesthis paragraph). Any amount payable to the Indemnified Parties under this Section 8.07 shall (a) be deemed a demand obligation, (b) be part of the Pool Obligations, (c) bear interest from the date of demand at the applicable interest rate specified in the Note, which shall be the Default RateRate unless prohibited by Laws, until paid if not paid on demand, and (d) be secured by the Documentsthis Instrument.

Duty to Defend, Costs and Expenses. Upon request, whether any Borrower’s obligation to indemnify Lender arises under Article VIII or in the Documents, each Borrower shall defend the Indemnified Parties (in the applicable Borrower’s or the Indemnified Parties’ names) by attorneys and other professionals reasonably approved by the Indemnified Parties; provided that, with respect to any insured matter, the Indemnified Parties shall be deemed to have approved attorneys and other professionals selected by the applicable insurance companies with respect to such matter absent an ethical conflict of interest or divergence of interests. Notwithstanding the foregoing, if any Indemnified Party notifies Borrower in writing that under applicable ethics rules an actual conflict of interest exists which precludes the attorney chosen by Borrower from undertaking the defense of such Indemnified Party (it being understood that the joint representation of Borrower and such Indemnified Party shall not necessarily constitute such a conflict of interest), such Indemnified Party may, in its sole and absolute discretion, engage its own attorneys and other professionals to defend or assist it with respect to such matters and, at the option of the Indemnified Party, its attorneys shall control the resolution of any such claims or proceedings. Upon demand, each Borrower shall pay or, in the sole discretion of the Indemnified Parties, reimburse and/or indemnify the Indemnified Parties for all Costs imposed on, incurred by, or asserted against the Indemnified Parties by reason of any items set forth in this Article VIII and/or the enforcement or preservation of the Indemnified Parties’ rights under the Documents; provided, however, that each Borrower shall not, with respect to any action brought against any Indemnified Party, be liable for the fees and expenses of more than one firm (in addition to any local counsel) for such Indemnified Party unless (i) the ethical constraints described in the preceding sentence require that any Indemnified Party engage separate counsel or (ii) the relevant Indemnified Party has Prudential Loan Nos. 706109321 - 706109336 CNL BV Portfolio Amended and Restated Loan Agreement reasonably concluded (in good faith and based upon advice of counsel) that there may be legal defenses available to it that are different from or in addition to those available to the other relevant Indemnified Parties. Any amount payable to the Indemnified Parties under this Section 8.07 shall (a) be deemed a demand obligation, (b) be part of the Pool Obligations, (c) bear interest from the date of demand at the Default Rate, until paid if not paid on demand, and (d) be secured by the Documents.