Common use of Indemnification; Waiver of Offset Clause in Contracts

Indemnification; Waiver of Offset. (a) If the Trustee or the 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 concerning the occupancy thereof by the Borrower, and such litigation did not arise as a result of the gross negligence or willful misconduct of the Trustee or the Beneficiary, as the case may be, then the Borrower shall indemnify, defend and hold the Trustee or the Beneficiary, as the case may be, harmless from and against all liability by reason of said litigation, including reasonable attorneys' fees and expenses in any such litigation, whether or not any such litigation is prosecuted to judgment. If the Trustee or the Beneficiary in good faith commences an action against the Borrower to enforce any of the terms hereof or because of the breach by the Borrower of any of the terms hereof, or for the recovery of any of the Obligations, then the Borrower shall, to the extent permitted by law, pay to the Trustee or the Beneficiary, as the case may be, its 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, provided that the Borrower shall not be liable for any amounts to be paid in settlement unless Borrower has consented in writing to such settlement, which consent shall not be unreasonably withheld. If a Default shall occur and be continuing, the Trustee or the Beneficiary may employ an attorney or attorneys to protect its rights hereunder, and in the event of such employment following any Default by the Borrower, the Borrower shall, to the extent permitted by law, pay the reasonable attorneys' fees and expenses incurred by the Trustee or the Beneficiary, as the case may be, whether or not an action is actually commenced against the Borrower by reason of such Default. The Borrower will assume the defense of any action against the Trustee or the Beneficiary covered by the indemnification set forth in this Section, including the retaining of counsel selected by Borrower and the payment by the Borrower of reasonable counsel's fees and expenses relating to such defense and of the aggregate amount to be paid at settlement of any litigation if such settlement is effected with the written consent of the WA: 1043170v4 197770-600002 Printed: 12-23-98 12:53

Indemnification; Waiver of Offset. (a) If Mortgagee, Agent or any of the Trustee or the Beneficiary is Secured Parties are made a party defendant to any litigation concerning the Notes, the Credit Agreement, this Deed of Trust Mortgage, any other Loan Instrument or the Trust Estate Mortgaged Property or any part thereof or interest therein, or concerning the occupancy thereof by the Borrower, and such litigation did not arise as a result of the gross negligence or willful misconduct of the Trustee or the Beneficiary, as the case may beMortgagor, then the Borrower Mortgagor shall indemnify, defend and hold the Trustee or the BeneficiaryMortgagee and/or such Secured Parties, as the case may be, harmless from and against all liability by reason of said litigation, including reasonable attorneys' fees and expenses incurred by Mortgagee and/or such Secured Parties, as the case may be, in any such litigation, whether or not any such litigation is prosecuted to judgment. If the Trustee or the Beneficiary in good faith Mortgagee commences an action against the Borrower Mortgagor to enforce any of the terms hereof or because of the breach by the Borrower Mortgagor of any of the terms hereof, hereof or for the recovery of any of sum secured hereby, Mortgagor shall pay the Obligations, then the Borrower shall, to the extent permitted by law, pay to the Trustee or the Beneficiary, as the case may be, its reasonable Mortgagee's attorneys' fees and expenses, together with interest thereon at the Default Interest Rate from the date the same are paid to the date of reimbursement by Mortgagor and the right to such reasonable 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, provided that the Borrower shall not be liable for any amounts to be paid in settlement unless Borrower has consented in writing to such settlement, which consent shall not be unreasonably withheld. If a Default shall occur and be continuingMortgagor breaches any term of this Mortgage, the Trustee or the Beneficiary Mortgagee may employ engage an attorney or attorneys to protect its Mortgagee's rights hereunder, and in the event of such employment engagement following any Default breach by the BorrowerMortgagor, the Borrower shall, to the extent permitted by law, Mortgagor shall pay the Mortgagee's reasonable attorneys' fees and expenses incurred by the Trustee or the Beneficiary, as the case may beso incurred, whether or not an action is actually commenced against the Borrower Mortgagor by reason of such Default. The Borrower will assume the defense of any action against the Trustee or the Beneficiary covered by the indemnification set forth in this Section, including the retaining of counsel selected by Borrower and the payment by the Borrower of reasonable counsel's fees and expenses relating to such defense and of the aggregate amount to be paid at settlement of any litigation if such settlement is effected with the written consent of the WA: 1043170v4 197770-600002 Printed: 12-23-98 12:53breach.

Indemnification; Waiver of Offset. (a) If Mortgagee, Agent or any of the Trustee or the Beneficiary is Secured Parties are made a party defendant to any litigation concerning the Notes, the Credit Agreement, this Deed of Trust Mortgage, any other Loan Instrument or the Trust Estate Mortgaged Property or any part thereof or interest therein, or concerning the occupancy thereof by the Borrower, and such litigation did not arise as a result of the gross negligence or willful misconduct of the Trustee or the Beneficiary, as the case may beMortgagor, then the Borrower Mortgagor shall indemnify, defend and hold the Trustee or the BeneficiaryMortgagee and/or such Secured Parties, as the case may be, harmless from and against all liability by reason of said litigation, including reasonable attorneys' fees and expenses incurred by Mortgagee and/or such Secured Parties, as the case may be, in any such litigation, whether or not any such litigation is prosecuted to judgment. If the Trustee or the Beneficiary in good faith Mortgagee commences an action against the Borrower Mortgagor to enforce any of the terms hereof or because of the breach by the Borrower Mortgagor of any of the terms hereof, hereof or for the recovery of any of sum secured hereby, Mortgagor shall pay the Obligations, then the Borrower shall, to the extent permitted by law, pay to the Trustee or the Beneficiary, as the case may be, its reasonable Mortgagee's attorneys' fees and expenses, together with interest thereon at the Default Interest Rate from the date the same are paid to the date of reimbursement by Mortgagor and the right to such reasonable 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, provided that the Borrower shall not be liable for . if Mortgagor breaches any amounts to be paid in settlement unless Borrower has consented in writing to such settlement, which consent shall not be unreasonably withheld. If a Default shall occur and be continuingterm of this Mortgage, the Trustee or the Beneficiary Mortgagee may employ engage an attorney or attorneys to protect its Mortgagee's rights hereunder, and in the event of such employment engagement following any Default breach by the BorrowerMortgagor, the Borrower shall, to the extent permitted by law, Mortgagor shall pay the Mortgagee's reasonable attorneys' fees and expenses incurred by the Trustee or the Beneficiary, as the case may beso incurred, whether or not an action is actually commenced against the Borrower mortgagor by reason of such Default. The Borrower will assume the defense of any action against the Trustee or the Beneficiary covered by the indemnification set forth in this Section, including the retaining of counsel selected by Borrower and the payment by the Borrower of reasonable counsel's fees and expenses relating to such defense and of the aggregate amount to be paid at settlement of any litigation if such settlement is effected with the written consent of the WA: 1043170v4 197770-600002 Printed: 12-23-98 12:53breach.

Indemnification; Waiver of Offset. (a) If the Trustee or the Beneficiary Mortgagee is made a party defendant to any litigation litigation, proceeding, action, suit, claim, demand or judgment of any nature or form, by or on behalf of any person, concerning this Deed of Trust Mortgage or the Trust Estate Leased Premises or any part thereof thereof, including any eminent domain, condemnation or interest thereinother proceeding, any proceeding, action, suit, claim, demand or judgment arising in any manner from an Environmental Requirement concerning the occupancy thereof by the BorrowerLeased Premises, and such litigation did not arise as a result of the gross negligence any contest, action or willful misconduct of the Trustee or the Beneficiaryproceeding pursuant to Sections 39, as the case may be40 and 41, then the Borrower Company shall indemnify, defend and hold the Trustee or the Beneficiary, as the case may be, Mortgagee harmless from any and against all liability liability, loss or expense by reason of said litigation, proceeding, action, suit, claim, demand or judgment (including reasonable any appeals therefrom), including attorneys' fees and expenses incurred by Mortgagee in any such litigation, proceeding, action, suit, claim, demand or judgment (including any appeals therefrom), but excluding liability for gross negligence or willful misconduct by Mortgagee other than gross negligence or willful misconduct imputed to Mortgagee solely by reason of its interest in the Leased Premises, whether or not any such litigation litigation, proceeding, action, suit, claim or demand is prosecuted to judgment. If the Trustee or the Beneficiary in good faith Mortgagee commences an action against the Borrower either Mortgagor to enforce any of the terms hereof or because by reason of a default of the breach by the Borrower of any of the terms hereofCompany hereunder, or for the recovery of any sum secured hereby, or if the Company breaches any term of this Mortgage, the Obligations, then the Borrower shall, to the extent permitted by law, Company shall pay to the Trustee or the Beneficiary, as the case may be, its reasonable Mortgagee attorneys' fees and expensesdisbursements (including any of the same incurred on appeal), and the right to such attorneys' fees and expenses shall be deemed to have accrued on the commencement of such action, action and shall be enforceable whether or not such action is prosecuted to judgment, provided that the Borrower shall not be liable for any amounts to be paid in settlement unless Borrower has consented in writing to such settlement, which consent shall not be unreasonably withheld. If a Default shall occur and be continuing, the Trustee or the Beneficiary may employ an attorney or attorneys to protect its rights hereunder, and in the event of such employment following any Default by the Borrower, the Borrower shall, to the extent permitted by law, pay the reasonable attorneys' fees and expenses incurred by the Trustee or the Beneficiary, as the case may be, whether or not an action is actually commenced against the Borrower by reason of such Default. The Borrower will assume the defense of any action against the Trustee or the Beneficiary covered by the indemnification set forth in this Section, including the retaining of counsel selected by Borrower and the payment by the Borrower of reasonable counsel's fees and expenses relating to such defense and of the aggregate amount to be paid at settlement of any litigation if such settlement is effected with the written consent of the WA: 1043170v4 197770-600002 Printed: 12-23-98 12:53.