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

Duty to Defend, Legal Fees and Other Fees and Expenses. Upon written request by Lender (for itself and/or on behalf of any other Indemnified Parties), Borrower shall defend Lender and/or any such Indemnified Parties (if requested by Lender, in the name of Lender and/or any such Indemnified Parties) to the extent required hereunder by attorneys and other professionals reasonably approved by the Indemnified Parties. Notwithstanding the foregoing, Lender may (for itself and/or on behalf of any other Indemnified Parties), in its sole discretion, engage its own attorneys and other professionals to defend or assist Lender and/or any such Indemnified Parties, and, at the option of Lender (on its own behalf and/or on behalf of any Indemnified Parties), its attorneys shall control the resolution of any claim or proceeding subject to Borrower’s right to consent to any settlement (such consent not to be unreasonably withheld or delayed). Borrower shall pay or, in the sole discretion of Lender, reimburse, Lender for the payment of reasonable fees and disbursements of attorneys, engineers, environmental consultants, laboratories and other professionals in connection therewith; provided, however, Borrower shall not be obligated to pay for fees and disbursements of more than one set of legal professionals retained by Indemnified Parties with respect to any indemnified claim (in addition to Borrower’s own legal professionals) regardless of the number of Indemnified Parties; provided, however (i) Indemnified Parties, collectively, may retain multiple law firms and/or multiple lawyers at the same firm if Indemnified Parties reasonably determine that separate specialized legal counsel is required with respect to specific matters, but no Indemnified Parties shall have its own separate counsel except as provided in subclause (ii) of this clause and (ii) (x) any Indemnified Party may retain its own separate counsel, and Borrower shall pay for the out-of-pocket fees and disbursement of such counsel, if such Indemnified Parties, based upon the advice of counsel, has separate defenses that would be materially and adversely compromised if it were to retain the same counsel or, if based upon the advice of counsel, a conflict exists between Borrower and such Indemnified Parties or the Indemnified Parties, or, if during the continuance of an Event of Default, based upon the advice of counsel, Lender has no further common interests and (y) any Indemnified Party may retain its own separate counsel at any time as described above at any time at its sole cost and expense.

Duty to Defend, Legal Fees and Other Fees and Expenses. Upon written request by Lender any Administrative Agent (for itself and/or on behalf of any other Indemnified Parties), Borrower shall defend Lender Administrative Agent and/or any such Indemnified Parties (if requested by LenderAdministrative Agent, in the name of Lender Administrative Agent and/or any such Indemnified Parties) to the extent required hereunder by attorneys and other professionals reasonably approved by the Indemnified Parties. Notwithstanding the foregoing, Lender Administrative Agent may (for itself and/or on behalf of any other Indemnified Parties), in its sole discretion, engage its own attorneys and other professionals to defend or assist Lender Administrative Agent and/or any such Indemnified Parties, and, at the option of Lender Administrative Agent (on its own behalf and/or on behalf of any Indemnified Parties), its attorneys shall control the resolution of any claim or proceeding subject to Borrower’s right to consent to any settlement (such consent not to be unreasonably withheld or delayed). Borrower shall pay or, in the sole discretion of Lenderthe Administrative Agent, reimburse, Lender the Administrative Agent for the payment of reasonable fees and disbursements of attorneys, engineers, environmental consultants, laboratories and other professionals in connection therewith; provided, however, Borrower shall not be obligated to pay for fees and disbursements of more than one set of legal professionals retained by Indemnified Parties with respect to any indemnified claim (in addition to Borrower’s own legal professionals) regardless of the number of Indemnified Parties; provided, however (i) Indemnified Parties, collectively, may retain multiple law firms and/or multiple lawyers at the same firm if Indemnified Parties reasonably determine that separate specialized legal counsel is required with respect to specific matters, but no Indemnified Parties shall have its own separate counsel except as provided in subclause (ii) of this clause and (ii) (x) any Indemnified Party may retain its own separate counsel, and Borrower shall pay for the out-of-pocket fees and disbursement of such counsel, if such Indemnified Parties, based upon the advice of counsel, has separate defenses that would be materially and adversely compromised if it were to retain the same counsel or, if based upon the advice of counsel, a conflict exists between Borrower and such Indemnified Parties or the Indemnified Parties, or, if during the continuance of an Event of Default, based upon the advice of counsel, a Lender has no further common interests and (y) any Indemnified Party may retain its own separate counsel at any time as described above at any time at its sole cost and expense.

Duty to Defend, Legal Fees and Other Fees and Expenses. Upon written request by Lender (for itself and/or on behalf of any other Indemnified Parties), Borrower shall defend Lender and/or any such Indemnified Parties (if requested by Lender, in the name of Lender and/or any such Indemnified Parties) to the extent required hereunder by attorneys and other professionals reasonably approved by the Indemnified Parties. Notwithstanding the foregoing, Lender may (for itself and/or on behalf of any other Indemnified Parties), in its sole discretion, engage its own attorneys and other professionals to defend or assist Lender and/or any such Indemnified Parties, and, at the option of Lender (on its own behalf and/or on behalf of any Indemnified Parties), its attorneys shall control the resolution of any claim or proceeding subject to Borrower’s right to consent to any settlement (such consent not to be unreasonably withheld or delayed). Borrower shall pay or, in the sole discretion of Lender, reimburse, Lender for the payment of reasonable fees and disbursements of attorneys, engineers, environmental consultants, laboratories and other professionals in connection therewith; provided, however, Borrower shall not be obligated to pay for fees and disbursements of more than one set of legal - 120 - professionals retained by Indemnified Parties with respect to any indemnified claim (in addition to Borrower’s own legal professionals) regardless of the number of Indemnified Parties; provided, however (i) Indemnified Parties, collectively, may retain multiple law firms and/or multiple lawyers at the same firm if Indemnified Parties reasonably determine that separate specialized legal counsel is required with respect to specific matters, but no Indemnified Parties shall have its own separate counsel except as provided in subclause (ii) of this clause and (ii) (x) any Indemnified Party may retain its own separate counsel, and Borrower shall pay for the out-of-pocket fees and disbursement of such counsel, if such Indemnified Parties, based upon the advice of counsel, has separate defenses that would be materially and adversely compromised if it were to retain the same counsel or, if based upon the advice of counsel, a conflict exists between Borrower and such Indemnified Parties or the Indemnified Parties, or, if during the continuance of an Event of Default, based upon the advice of counsel, Lender has no further common interests and (y) any Indemnified Party may retain its own separate counsel at any time as described above at any time at its sole cost and expense.

Duty to Defend, Legal Fees and Other Fees and Expenses. Upon written request by Lender (for itself and/or on behalf of any other Indemnified Parties)Person, Borrower shall defend Lender and/or any such Indemnified Parties Person (if requested by Lenderany Indemnified Person, in the name of Lender and/or any such the Indemnified PartiesPerson) to the extent required hereunder by attorneys and other professionals selected by Borrower and reasonably approved by the Indemnified PartiesPersons. Notwithstanding the foregoing, Lender may (for itself and/or on behalf of any other Indemnified Parties)Persons may, in its their sole discretiondiscretion and at the Indemnified Persons’ sole cost and expense, engage its their own attorneys and other professionals to defend or assist Lender and/or any such Indemnified Partiesthem, and, at the option of Lender (on its own behalf and/or on behalf of any Indemnified Parties)Persons, its their attorneys shall control 190 the resolution of any claim or proceeding subject to Borrower’s proceeding, provided, however, that Borrower shall have the right to consent to reasonably approve any settlement (such consent Indemnified Persons desire to enter into with respect to such matter and any such settlement shall provide a full release of Borrower with respect to such matter. Upon demand if Borrower is not to be unreasonably withheld or delayed). defending the Indemnified Persons in accordance with this Section 12.4, Borrower shall pay or, in the sole discretion of Lenderthe Indemnified Persons, reimburse, Lender the Indemnified Persons for the payment of reasonable fees and disbursements of attorneys, engineers, environmental consultants, laboratories and other professionals in connection therewith; provided, however, Borrower shall not be obligated to pay for fees and disbursements of more than one set of legal professionals retained by Indemnified Parties with respect to any indemnified claim (in addition to Borrower’s own legal professionals) regardless of the number of Indemnified Parties; provided, however (i) Indemnified PartiesPersons, collectively, collectively may retain multiple law firms and/or multiple lawyers at the same firm if Indemnified Parties Persons reasonably determine that separate specialized legal counsel is required with respect to specific matters, but no Indemnified Parties Person shall have its their own separate counsel except as provided in subclause (ii) of this clause and (ii) (x) any Indemnified Party Person may retain its own separate counsel, and Borrower shall pay for the actual out-of-pocket reasonable fees and disbursement disbursements of such counsel, if such Indemnified PartiesPersons, based upon the advice of counsel, has separate defenses that would be materially and adversely compromised if it were to retain the same counsel or, if based upon the advice of counsel, a conflict exists between Borrower and such Indemnified Parties Person or the Indemnified PartiesPerson, or, if during the continuance of an Event of Default, based upon the advice of counsel, Lender has no further common interests and (y) any Indemnified Party Person may retain its own separate counsel at any time as described above at any time at its sole cost and expense.

Duty to Defend, Legal Fees and Other Fees and Expenses. Upon written request In case any action, suit or proceeding is brought against the Indemnified Parties by Lender (for itself and/or on behalf reason of any other Indemnified Parties)such occurrence described in Section 12.1 above, Borrower shall at Borrower’s expense resist and defend such action, suit or proceeding or will cause the same to be resisted and defended by counsel at Borrower’s reasonable expense for the insurer of the liability or by counsel designated by Borrower (unless reasonably disapproved by Administrative Agent or Lender and/or any promptly after Administrative Agent or Lender has been notified of such Indemnified Parties (if requested by Lendercounsel, in which case Borrower may designate alternative counsel reasonably satisfactory to Administrative Agent or Lender); provided, however, that nothing herein shall compromise the name right of Administrative Agent or Lender and/or (or any such Indemnified PartiesParty) to the extent required hereunder by attorneys appoint its own counsel at Borrower’s expense for its defense with respect to any action which in its reasonable opinion presents a conflict or potential conflict between Administrative Agent or Lender and other professionals reasonably approved by the Indemnified Parties. Notwithstanding Borrower that would make such separate representation advisable; and, provided, further, that if Administrative Agent or Lender shall have appointed separate counsel pursuant to the foregoing, Lender may (Borrower shall not be responsible for itself and/or on behalf 117 the expense of any other Indemnified Parties), in its sole discretion, engage its own attorneys and other professionals to defend or assist Lender and/or any such Indemnified Parties, and, at the option of Lender (on its own behalf and/or on behalf additional separate counsel of any Indemnified Parties)Party unless in the reasonable opinion of Administrative Agent or Lender a conflict or potential conflict exists between such Indemnified Party and Administrative Agent or Lender. So long as Borrower is resisting and defending such action, its attorneys shall control the resolution of any claim suit or proceeding subject as provided above in a prudent and commercially reasonable manner, Lender and the Indemnified Parties shall not be entitled to settle such action, suit or proceeding without Borrower’s right to consent to any settlement (such consent which shall not to be unreasonably withheld or delayed). Borrower shall pay or, in the sole discretion of and Administrative Agent or Lender, reimburseas the case may be, Lender for agrees that it will not settle any such action, suit or proceeding without the payment consent of reasonable fees and disbursements of attorneys, engineers, environmental consultants, laboratories and other professionals in connection therewithBorrower; provided, however, that if Borrower shall is not be obligated diligently defending such action, suit or proceeding in a prudent and commercially reasonable manner as provided above, and Administrative Agent or Lender has provided Borrower with thirty (30) days’ prior written notice, or shorter period if mandated by the requirements of applicable law, and opportunity to pay for fees correct such determination, Administrative Agent or Lender, as the case may be, may settle such action, suit or proceeding as to the claim against such party and disbursements claim the benefit of more than one set of legal professionals retained by Indemnified Parties this Section 12.4 with respect to settlement of such action, suit or proceeding. Any Indemnified Party will give Borrower prompt notice after such Indemnified Party obtains actual knowledge of any indemnified potential claim (in addition to Borrower’s own legal professionals) regardless of the number of by such Indemnified Parties; provided, however (i) Indemnified Parties, collectively, may retain multiple law firms and/or multiple lawyers at the same firm if Indemnified Parties reasonably determine that separate specialized legal counsel is required with respect to specific matters, but no Indemnified Parties Party for indemnification hereunder. Borrower shall have its own separate counsel except as provided in subclause (ii) of this clause and (ii) (x) the right to settle or compromise any action, proceeding or claim against any Indemnified Party may retain its own separate counsel, and Borrower shall pay for so long as the out-of-pocket fees and disbursement same does not include any admission of wrongdoing on the part of such counsel, if such Indemnified Parties, based upon the advice of counsel, has separate defenses that would be materially and adversely compromised if it were to retain the same counsel or, if based upon the advice of counsel, a conflict exists between Borrower and such Indemnified Parties or the Indemnified Parties, or, if during the continuance of an Event of Default, based upon the advice of counsel, Lender has no further common interests and (y) any Indemnified Party may retain its own separate counsel at any time as described above at any time at its sole cost and expenseParty.

Duty to Defend, Legal Fees and Other Fees and Expenses. Upon written request by Lender (for itself and/or on behalf of any other Indemnified Parties)Person, Borrower shall defend Lender and/or any such Indemnified Parties Person (if requested by Lenderany Indemnified Person, in the name of Lender and/or any such the Indemnified PartiesPerson) to the extent required hereunder by attorneys and other professionals selected by Borrower and reasonably approved by the Indemnified PartiesPersons. Notwithstanding the foregoing, Lender may (for itself and/or on behalf of any other Indemnified Parties)Persons may, in its their sole discretiondiscretion and at the Indemnified Persons’ sole cost and expense, engage its their own attorneys and other professionals to defend or assist Lender and/or any such Indemnified Partiesthem, and, at the option of Lender (on its own behalf and/or on behalf of any Indemnified Parties)Persons, its their attorneys shall control 190 Confidential Treatment Requested by Retail Value Inc. RVI-313. Pursuant to 17 C.F.R. Section 200.83. the resolution of any claim or proceeding subject to Borrower’s proceeding, provided, however, that Borrower shall have the right to consent to reasonably approve any settlement (such consent Indemnified Persons desire to enter into with respect to such matter and any such settlement shall provide a full release of Borrower with respect to such matter. Upon demand if Borrower is not to be unreasonably withheld or delayed). defending the Indemnified Persons in accordance with this Section 12.4, Borrower shall pay or, in the sole discretion of Lenderthe Indemnified Persons, reimburse, Lender the Indemnified Persons for the payment of reasonable fees and disbursements of attorneys, engineers, environmental consultants, laboratories and other professionals in connection therewith; provided, however, Borrower shall not be obligated to pay for fees and disbursements of more than one set of legal professionals retained by Indemnified Parties with respect to any indemnified claim (in addition to Borrower’s own legal professionals) regardless of the number of Indemnified Parties; provided, however (i) Indemnified PartiesPersons, collectively, collectively may retain multiple law firms and/or multiple lawyers at the same firm if Indemnified Parties Persons reasonably determine that separate specialized legal counsel is required with respect to specific matters, but no Indemnified Parties Person shall have its their own separate counsel except as provided in subclause (ii) of this clause and (ii) (x) any Indemnified Party Person may retain its own separate counsel, and Borrower shall pay for the actual out-of-pocket reasonable fees and disbursement disbursements of such counsel, if such Indemnified PartiesPersons, based upon the advice of counsel, has separate defenses that would be materially and adversely compromised if it were to retain the same counsel or, if based upon the advice of counsel, a conflict exists between Borrower and such Indemnified Parties Person or the Indemnified PartiesPerson, or, if during the continuance of an Event of Default, based upon the advice of counsel, Lender has no further common interests and (y) any Indemnified Party Person may retain its own separate counsel at any time as described above at any time at its sole cost and expense.

Duty to Defend, Legal Fees and Other Fees and Expenses. Upon written request by Lender (for itself and/or on behalf of any other Indemnified Parties)Party, Borrower shall defend Lender and/or any such Indemnified Parties Party (if requested by Lenderany Indemnified Party, in the name of Lender and/or any such the Indemnified PartiesParty) to the extent required hereunder by attorneys and other professionals reasonably approved by the Indemnified Parties. Notwithstanding the foregoing, Lender may (for itself and/or on behalf of any other Indemnified Parties)Parties may, in its their sole discretion, engage its their own attorneys and other professionals to defend or assist Lender and/or any such Indemnified Partiesthem, and, at the option of Lender (on its own behalf and/or on behalf of any Indemnified Parties), its their attorneys shall control the resolution of any claim or proceeding proceeding, which if no Event of Default shall be continuing shall be subject to Borrower’s right to consent to any settlement (such consent not to be unreasonably withheld withheld, conditioned or delayed). Upon demand, Borrower shall pay or, in the sole discretion of Lenderthe Indemnified Parties, reimburse, Lender the Indemnified Parties for the payment of reasonable fees and disbursements of attorneys, engineers, environmental consultants, laboratories and other professionals in connection therewith; provided, however, Borrower shall not be obligated to pay for fees and disbursements of more than one set of legal professionals retained by Indemnified Parties with respect to any indemnified claim (in addition to Borrower’s own legal professionals) regardless of the number of Indemnified Parties; provided, however (i) Indemnified Partiesfurther, collectivelyhowever, may retain multiple law firms and/or multiple lawyers at the same firm if Indemnified Parties reasonably determine that separate specialized legal counsel is required with respect to specific matters, but no Indemnified Parties shall have its own separate counsel except as provided in subclause (ii) of this clause and (ii) (x) any Indemnified Party may retain its own separate counsel, and Borrower shall pay for the out-of-pocket fees and disbursement of such counsel, if such Indemnified Parties, based upon the advice of counsel, has separate defenses that would be materially and adversely compromised if it were to retain the same counsel or, if based upon the advice of counsel, a conflict exists between Borrower and such Indemnified Parties or the Indemnified Parties, or, if during the continuance of an Event of Default, based upon the advice of counsel, Lender has no further common interests and (y) any Indemnified Party may retain its own separate counsel at any time as described above at any time at its sole cost and expense.