Common use of Indemnification; Subrogation; Waiver of Offset Clause in Contracts

Indemnification; Subrogation; Waiver of Offset. (i) Trustor agrees to indemnify, protect, hold harmless and defend Trustee and Beneficiary from and against any and all losses, liabilities, suits, obligations, fines, damages, judgments, penalties, claims, charges, costs and expenses (including reasonable attorneys’ fees and disbursements) which may be imposed on, incurred or paid by or asserted against Trustee and/or Beneficiary by reason or on account of, or in connection with, (a) any willful misconduct of Trustor, (b) the construction, reconstruction or alteration of the Improvements or the Premises, (c) any negligence of Trustor or any negligence or willful misconduct of any lessee or sublessee of the Premises or the Improvements, or any of their respective agents, contractors, subcontractors, servants, employees, licensees or invitees, or (d) any accident, injury, death or damage to any Person or property occurring in, on or about the Premises or the Improvements or any street, driveway, sidewalk, curb or passageway adjacent thereto, except for the willful misconduct or gross negligence of Trustee or Beneficiary. Any amount payable to Trustee or Beneficiary under this Section 2.10 shall be due and payable within ten (10) days after demand therefor and receipt by Trustor of a statement from Trustee and/or Beneficiary setting forth in reasonable detail the amount claimed and the basis therefor. Trustor’s obligations under this Section 2.10 shall survive the repayment or any other satisfaction of the Obligations and shall not be affected by the absence or unavailability of insurance covering the same or by the failure or refusal of any insurance carrier to perform any obligation on its part under any such policy of insurance. If any claim, action or proceeding is made or brought against Trustee and/or Beneficiary which is subject to the indemnity set forth in this Section 2.10, Trustor shall resist or defend against the same, if necessary in the name of Trustee and/or Beneficiary, by attorneys for Trustor’ s insurance carrier (if the same is covered by insurance) approved by Trustee and/or Beneficiary (as applicable) or otherwise by attorneys retained by Trustor and approved by Trustee and/or Beneficiary (as applicable). Notwithstanding the foregoing, Trustee and Beneficiary, in their discretion, if either or both of them disapprove of the attorneys provided by Trustor or Trustor’s insurance carrier, may engage their own attorneys to resist or defend, or assist therein, and, Trustor shall pay, or, on demand, shall reimburse Trustee and Beneficiary for the payment of the reasonable fees and disbursements of such attorneys.

Indemnification; Subrogation; Waiver of Offset. Subject to the indemnification obligations of the Beneficiary contained in the APSA, if Beneficiary is made a party defendant to any litigation concerning this Deed of Trust or the Trust Estate or any part thereof or interest therein, or the occupancy thereof by Borrower, then Borrower shall indemnify, defend and hold Beneficiary harmless from all liability by reason of said litigation, including reasonable attorney fees and expenses incurred by Beneficiary in any such litigation, whether or not any such litigation is prosecuted to judgment. If Beneficiary commences an action against Borrower to enforce any of the terms hereof or because of the breach by Borrower of any of the terms hereof, or for the recovery of any Secured Obligations, Borrower shall pay to Beneficiary reasonable attorney fees and expenses, and the right to such attorney fees and expenses shall be deemed to have accrued on the commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. If Borrower breaches any term of this Deed of Trust, Beneficiary may employ an attorney or attorneys to protect its rights hereunder, and in the event of such employment following any breach by Xxxxxxxx, Borrower shall pay Beneficiary reasonable attorney fees and expenses incurred by Beneficiary, whether or not an action is actually commenced against Borrower by reason of breach. DEED OF TRUST PAGE 5 OF 17 Borrower waives any and all right to claim or recovery against Beneficiary, its officers, employees, agents and representatives, for loss of or damage to Borrower, the Trust Estate, Xxxxxxxx's property or the property of others under Xxxxxxxx's control from any cause insured against or required to be insured against by the provisions of this Deed of Trust. All sums due and payable by Borrower hereunder shall be paid without notice, demand, counterclaim, setoff, deduction or defense and without abatement, suspension, deferment, diminution or reduction, and the obligations and liabilities of Borrower hereunder shall in no way be released, discharged or otherwise affected by reason of: (i) Trustor agrees any damage to indemnify, protect, hold harmless and defend Trustee and Beneficiary from and against or destruction of or any and all losses, liabilities, suits, obligations, fines, damages, judgments, penalties, claims, charges, costs and expenses condemnation or similar taking of the Trust Estate or any part thereof; (including reasonable attorneys’ fees and disbursements) which may be imposed on, incurred or paid by or asserted against Trustee and/or Beneficiary by reason or on account of, or in connection with, (aii) any willful misconduct restriction or prevention of Trustor, (b) the construction, reconstruction or alteration interference with any use of the Improvements Trust Estate or the Premises, any part thereof; (ciii) any negligence of Trustor title defect or encumbrance or any negligence or willful misconduct of any lessee or sublessee of eviction from the Premises or the Improvements, or any of their respective agents, contractors, subcontractors, servants, employees, licensees or invitees, or (d) any accident, injury, death or damage to any Person or property occurring in, on or about the Premises Property or the Improvements or any streetpart thereof by title paramount or otherwise; or (iv) any bankruptcy, drivewayinsolvency, sidewalkreorganization, curb composition, adjustment, dissolution, liquidation or passageway adjacent theretoother like proceeding relating to Beneficiary, except for the willful misconduct or gross negligence of Trustee or Beneficiary. Any amount payable to Trustee or Beneficiary under this Section 2.10 shall be due and payable within ten (10) days after demand therefor and receipt by Trustor of a statement from Trustee and/or Beneficiary setting forth in reasonable detail the amount claimed and the basis therefor. Trustor’s obligations under this Section 2.10 shall survive the repayment or any other satisfaction action taken with respect to this Deed of Trust by any trustee or receiver of Beneficiary, or by any court, in any such proceeding; whether or not Borrower shall have notice or knowledge of any of the Obligations and shall not be affected by the absence or unavailability of insurance covering the same or by the failure or refusal of any insurance carrier to perform any obligation on its part under any such policy of insurance. If any claim, action or proceeding is made or brought against Trustee and/or Beneficiary which is subject to the indemnity set forth in this Section 2.10, Trustor shall resist or defend against the same, if necessary in the name of Trustee and/or Beneficiary, by attorneys for Trustor’ s insurance carrier (if the same is covered by insurance) approved by Trustee and/or Beneficiary (as applicable) or otherwise by attorneys retained by Trustor and approved by Trustee and/or Beneficiary (as applicable). Notwithstanding the foregoing, Trustee and Beneficiary, in their discretion, if either or both of them disapprove of the attorneys provided by Trustor or Trustor’s insurance carrier, may engage their own attorneys to resist or defend, or assist therein, and, Trustor shall pay, or, on demand, shall reimburse Trustee and Beneficiary for the payment of the reasonable fees and disbursements of such attorneys.

Indemnification; Subrogation; Waiver of Offset. (a) If Mortgagee is made a party defendant to any litigation concerning this Mortgage or the Mortgaged Property or any part thereof or interest therein, or the occupancy thereof by Mortgagor, then Mortgagor shall indemnify, defend and hold Mortgagee harmless from all liability by reason of said litigation, including reasonable attorneys' fees and expenses incurred by Mortgagee in any such litigation, whether or not any such litigation is prosecuted to judgment, except for liability caused by Mortgagee's gross negligence or wilful misconduct. If Mortgagee commences an action against Mortgagor to enforce any of the terms hereof or because of the breach by Mortgagor of any of the terms hereof, or for the recovery of any sum secured hereby, Mortgagor shall pay to Mortgagee reasonable attorneys' fees and expenses, and the right to such attorneys' fees and expenses shall be deemed to have accrued on the commencement of such action, and shall be enforceable whether or not such action is prosecuted to judgment. If Mortgagor breaches any term of this Mortgage, Mortgagee may employ an attorney or attorneys to protect its rights hereunder, and in the event of such employment following any breach by Mortgagor, Mortgagor shall pay Mortgagee reasonable attorneys' fees and expenses incurred by Mortgagee, whether or not an action is actually commenced against Mortgagor by reason of breach; (b) Mortgagor waives any and all right to claim or recover against Mortgagee, its officers, employees, agents and representatives, for loss of or damage to Mortgagor, the Mortgaged Property, Mortgagor's property or the property of others under Mortgagor's control from any cause insured against or required to be insured against by the provisions of this Mortgage; (c) All sums payable by Mortgagor hereunder shall be paid without notice, demand, counterclaim, setoff, deduction or defense and without abatement, suspension, deferment, diminution or reduction, and the obligations and liabilities of Mortgagor hereunder shall in no way be released, discharged or otherwise affected (except as expressly provided herein) by reason of: (i) Trustor agrees any damage to indemnify, protect, hold harmless and defend Trustee and Beneficiary from and against or destruction of or any and all losses, liabilities, suits, obligations, fines, damages, judgments, penalties, claims, charges, costs and expenses condemnation or similar taking of the Mortgaged Property or any part thereof; (including reasonable attorneys’ fees and disbursements) which may be imposed on, incurred or paid by or asserted against Trustee and/or Beneficiary by reason or on account of, or in connection with, (aii) any willful misconduct restriction or prevention of Trustor, (b) the construction, reconstruction or alteration interference with any use of the Improvements Mortgaged Property or the Premises, any part thereof; (ciii) any negligence of Trustor title defect or encumbrance or any negligence or willful misconduct of any lessee or sublessee of eviction from the Premises or the Improvements, or any of their respective agents, contractors, subcontractors, servants, employees, licensees or invitees, or (d) any accident, injury, death or damage to any Person or property occurring in, on or about the Premises Property or the Improvements or any streetpart thereof by title paramount or otherwise; (iv) any bankruptcy, drivewayinsolvency, sidewalkreorganization, curb composition, adjustment, dissolution, liquidation or passageway adjacent theretoother like proceeding relating to Mortgagor, except for or any action taken with respect to this Mortgage by any trustee or receiver of Mortgagor, or by any court, in any such proceeding; (v) any claim which Mortgagor has or might have against Mortgagee; (vi) any default or failure on the willful misconduct part of Mortgagee to perform or gross negligence comply with any of Trustee the terms hereof or Beneficiaryof any other agreement with Mortgagor; or (vii) any other occurrence whatsoever, whether similar or dissimilar to the foregoing; whether or not Mortgagor shall have notice or knowledge of any of the foregoing. Any amount payable Except as expressly provided herein, to Trustee the extent permitted by applicable law, Mortgagor waives all rights now or Beneficiary under this Section 2.10 shall be due hereafter conferred by statute or otherwise to any abatement, suspension, deferment, diminution or reduction of any sum secured hereby and payable within ten (10) days after demand therefor and receipt by Trustor of a statement from Trustee and/or Beneficiary setting forth in reasonable detail the amount claimed and the basis therefor. Trustor’s obligations under this Section 2.10 shall survive the repayment or any other satisfaction of the Obligations and shall not be affected by the absence or unavailability of insurance covering the same or by the failure or refusal of any insurance carrier to perform any obligation on its part under any such policy of insurance. If any claim, action or proceeding is made or brought against Trustee and/or Beneficiary which is subject to the indemnity set forth in this Section 2.10, Trustor shall resist or defend against the same, if necessary in the name of Trustee and/or Beneficiary, by attorneys for Trustor’ s insurance carrier (if the same is covered by insurance) approved by Trustee and/or Beneficiary (as applicable) or otherwise by attorneys retained by Trustor and approved by Trustee and/or Beneficiary (as applicable). Notwithstanding the foregoing, Trustee and Beneficiary, in their discretion, if either or both of them disapprove of the attorneys provided by Trustor or Trustor’s insurance carrier, may engage their own attorneys to resist or defend, or assist therein, and, Trustor shall pay, or, on demand, shall reimburse Trustee and Beneficiary for the payment of the reasonable fees and disbursements of such attorneysMortgagor.

Indemnification; Subrogation; Waiver of Offset. (ia) Trustor agrees to The Issuer shall indemnify, protect, hold harmless and defend Trustee the Trustee, the Holders, the Collateral Agent, the trustee under the Deed of Trust and Beneficiary their respective directors, officers, employees, shareholders, members, assigns, representatives or agents (the "INDEMNIFIED PARTIES") from and against any and all Environmental Liabilities and Costs, losses, liabilities, suits, obligations, fines, damages, judgments, penalties, claims, charges, costs and expenses (including reasonable attorneys’ ' fees and disbursements) which may be imposed on, incurred or paid by or asserted against Trustee and/or Beneficiary any of the Indemnified Parties by reason or on account of, or in connection with, (ai) acceptance or administration of its duties under this Indenture and the other Operative Documents without negligence or bad faith on its part, including, but not limited to, the costs and expenses of enforcing this Indenture (including this SECTION 4.19) or any other Operative Document against the Issuer or any other Person and defending itself against any claim (whether asserted by the Issuer or a Holder or any other Person) or liability in connection with the exercise of any of its powers or the discharge of any of its duties under this Indenture or the other Operative Documents and all Environmental Liabilities and Costs, (ii) any willful misconduct of Trustorthe Issuer or any Default or Event of Default, (biii) the construction, reconstruction or alteration of the Improvements or the PremisesTrust Estate, (civ) any negligence of Trustor the Issuer or any negligence or willful misconduct of any lessee or sublessee of the Premises or the ImprovementsTrust Estate, or any of their respective agents, contractors, subcontractors, servants, employees, licensees or invitees, or (dv) any accident, injury, death or damage to any Person person or property occurring in, on or about the Premises or the Improvements Trust Estate or any street, driveway, sidewalk, curb or passageway adjacent thereto, except for the willful misconduct or gross negligence of Trustee the indemnified Party. The indemnity in subsection (i) includes, without limitation, all costs of removal, Remedial Action of any kind, and disposal of Hazardous Substances (whether or Beneficiarynot such Hazardous Substances may be legally allowed to remain in the Real Estate if removal or remediation is prudent), after a foreclosure, the cost of determining whether the Real Estate that was the subject of the foreclosure is in compliance with, and free of all Environmental Liabilities and Cost under, and causing such Real Estate to be in compliance with, and free of all Environmental Liabilities and Cost under, all applicable Environmental Laws, and the reasonable attorneys' and consultants' fees, expenses and court costs relating thereto of each of the Indemnified Parties. Any amount payable to Trustee or Beneficiary any of the Indemnified Parties under this Section 2.10 SECTION 4.19 shall be due and payable within ten (10) days after demand therefor and receipt by Trustor the Issuer of a statement from Trustee and/or Beneficiary any of the Indemnified Parties setting forth in reasonable detail the amount claimed and the basis therefor. Trustor’s The Issuer's obligations under this Section 2.10 SECTION 4.19 shall survive the repayment or any other satisfaction of the Obligations Notes and shall not be affected by the absence or unavailability of insurance covering the same or by the failure or refusal of any insurance carrier to perform any obligation on its part under any such policy of insurance. If any claim, action or proceeding is made or brought against Trustee and/or Beneficiary which any of the Indemnified Parties that is subject to the indemnity set forth in this Section 2.10SECTION 4.19, Trustor the Issuer shall resist or defend against the same, if necessary in the name of Trustee and/or Beneficiarysuch Indemnified Parties (as applicable), by attorneys for Trustor’ s the Issuer's insurance carrier (if the same is covered by insurance) approved by Trustee and/or Beneficiary such Indemnified Parties (as applicable) or otherwise by attorneys retained by Trustor the Issuer and approved by Trustee and/or Beneficiary the such Indemnified Parties (as applicable). Notwithstanding the foregoing, Trustee and Beneficiaryany of the Indemnified Parties, in their discretion, if either or both any of them disapprove of the attorneys provided by Trustor the Issuer or Trustor’s the Issuer's insurance carrier, may engage their own attorneys to resist or defend, or assist therein, and, Trustor and the Issuer shall pay, or, on demand, shall reimburse Trustee and Beneficiary for pay the payment of the reasonable fees and disbursements of such said attorneys. The Issuer need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld.

Indemnification; Subrogation; Waiver of Offset. (i) Trustor agrees to indemnify, protect, hold harmless and defend Trustee and Beneficiary from and against any and all losses, liabilities, suits, obligations, fines, damages, judgments, penalties, claims, charges, costs and expenses (including reasonable attorneys’ ' fees and disbursements) which may be imposed on, incurred or paid by or asserted against Trustee and/or Beneficiary by reason or on account of, or in connection with, (a) any willful misconduct of Trustor, (b) the construction, reconstruction or alteration of the Improvements or the Premises, (c) any negligence of Trustor or any negligence or willful misconduct of any lessee or sublessee of the Premises or the Improvements, or any of their respective agents, contractors, subcontractors, servants, employees, licensees or invitees, or (d) any accident, injury, death or damage to any Person person or property occurring in, on or about the Premises or the Improvements or any street, driveway, sidewalk, curb or passageway adjacent thereto, except for the willful misconduct or gross negligence of Trustee or Beneficiarythe indemnified person. Any amount payable to Trustee or Beneficiary under this Section 2.10 shall be due and payable within ten (10) days after demand therefor and receipt by Trustor of a statement from Trustee and/or Beneficiary setting forth in reasonable detail the amount claimed and the basis therefor. Trustor’s 's obligations under this Section 2.10 shall survive the repayment or any other satisfaction of the Obligations and shall not be affected by the absence or unavailability of insurance covering the same or by the failure or refusal of any insurance carrier to perform any obligation on its part under any such policy of insurance. If any claim, action or proceeding is made or brought against Trustee and/or Beneficiary which is subject to the indemnity set forth in this Section 2.10Section, Trustor shall resist or defend against the same, if necessary in the name of Trustee and/or Beneficiary, by attorneys for Trustor’ s 's insurance carrier (if the same is covered by insurance) approved by Trustee and/or Beneficiary (as applicable) or otherwise by attorneys retained by Trustor and approved by Trustee and/or Beneficiary (as applicable). Notwithstanding the foregoing, Trustee and Beneficiary, in their discretion, if either or both of them disapprove of the attorneys provided by Trustor or Trustor’s 's insurance carrier, may engage their own attorneys to resist or defend, or assist therein, and, and Trustor shall pay, or, on demand, shall reimburse Trustee and Beneficiary for the payment of the reasonable fees and disbursements of such attorneys.